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COURSE   OF   LECTURES 


CONSTITUTIONAL  JURISPRUDENCE 


UNITED   STATES 


DELIVERED   ANNUALLY   IN   COLUMBIA   COLLEGE,  NEW  YORK, 


WILLIAM  ALEXANDER  DUER,  LL.D., 

In 

LATE  PRESIDENT  OF   THAT   INSTITUTION. 

THE    SECOND    EDITION, 

REVISED,  ENLARGED,  AND   ADAPTED   TO   PROFESSIONAL   AS   WELL 
AS   GENERAL   USE. 

Efit  omnibus  necesaarium  nosse  Rempublicam.  —  Cic. 


BOSTON: 
LITTLE,    BROWN   AND    COMPANY. 

1856. 


Entered  according  to  Act  of  Congress,  in  the  year  1856,  by 

William  Alexander  Duer, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  New  Jersev. 


^■^  '-^^^-^ 


riverside,   CAMBRIDGE: 
PKIMTED    BY    H.    O.    HOUGHTON    AND    COMP^VXY. 


^ 


ADVERTISEMENT 


The  favorable  reception  given  to  the  former  edition  of  the 
following  work,  has  encouraged  the  author  to  devote  to  its 
revision  the  health  and  leisure  vouchsafed  to  his  declining 
years.  By  a  more  frequent  and  extensive  citation  of  authori- 
ties, he  has  endeavored  to  impart  to  it  a  more  professional 
aspect  and  authentic  character.  He  has  added  the  most  im- 
portant subsequent  decisions  upon  constitutional  questions,  both 
of  the  Federal  and  State  Courts,  down,  as  nearly  as  possible? 
to  the  present  time,  and  included  many  earlier  cases  not  noticed 
on  the  former  occasion  as  not  falling  within  a  plan  adapted 
"  merely  to  a  particular  and  limited  purpose.  Thus  has  he  at- 
tempted to  render  the  production  more  acceptable  to  the 
judicial,  as  well  as  more  useful  to  the  general  scholar,  and  to 
afford  indeed  to  all,  and  especially  to  those  foreigners  who  may 
desire  information  in  regard  to  our  political  institutions,  the 
means  of  acquiring  it  in  a  compendious  and  convenient  form. 

If  in  this  he  has  succeeded,  he  trusts  he  may  in  some  meas- 
ure have  discharged  the  debt  which,  according  to  Lord  Coke, 
every  man  owes  to  his  profession, — in  this  case,  the  double 
duty  of  the  Lawyer  and  the  Teacher. 

Inglewood,  near  Morristown,  N.  J., 
August  1,  1866. 


DEDICATION   OF   THE   "  OUTLINES,"   PUBLISHED   PREVIOUSLY   TO 
THE   LECTURES  AT   LARGE. 


TO   JAMES    MADISON. 

To  you,  Sir,  as  the  sole  surviving  member  of  the  august  assembly 
that  framed  the  Constitution,  and  of  that  illustrious  triumvirate,  who, 
in  vindicating  it  from  the  objections  of  its  first  assailants,  succeeded 
in  recommending  it  to  the  adoption  of  their  country ;  to  you,  who, 
in  discharging  the  highest  duties  of  its  administration,  —  proved 
the  stability  and  excellence  of  the  Federal  Constitution,  in  war,  as 
well  as  in  peace, —  and  determined  the  experiment  in  favor  of  repub- 
lican institutions,  and  the  right  of  self-government ;  to  you,  who  in 
your  retirement,  raised  a  warning  voice  against  those  heresies  in  the 
construction  of  the  Constitution  which,  for  the  moment,  threatened  to 
impair  it ;  to  you,  Sir,  as  alone  among  the  earliest  and  the  latest  of 
its  defenders,  this  brief  exposition  of  the  organization  and  principles 
of  the  National  Government,  intended  especlsilly  for  the  instruction 
of  our  American  youth.  Is  most  respectfully,  and,  in  reference  to 
your  public  services,  most  properly,  inscribed. 

W.  A.  DUER. 

Columbia  College,  N.  Y.,  August  1, 1833. 


DEDICATION   OF   THE   FIRST   EDITION   OF   THE   LECTURES. 


TO   JAMES    KENT,   LL.D. 

My  dear  Sir, 

Relying  for  forgiveness  upon  "an  uninterrupted  possession"  of 
your  friendship  "  of  more  than  twenty  years,  under  color "  at  least 
"  of  title,"  I  venture,  without  your  knowledge  or  consent,  to  inscribe 
to  you  a  Treatise  on  the  Constitutional  Jurisprudence  of  the  United 
States.  In  this  act,  I  do  but  make  restitution  of  your  own  property, 
or,  perhaps,  to  express  myself  more  properly, —  tender  payment  for 
the  use  of  it ;  for  you  will  soon  discover  that,  next  to  the  contempo- 
raneous expositions  of  the  authors  of  "  The  Federalist,"  I  have  drawn 
my  materials  more  largely  and  freely  from  your  "  Commentaries," 
and  the  lucid  and  deep  investigations  of  the  late  Chief  Justice  Mar- 
shall, than  from  any  other  sources.  And  although  the  responses  of 
that  great  oracle  of  the  Constitution  have  ceased,  yet,  may  we  hope 
that  the  inspiration  will  not  be  withdrawn,  —  whilst  your  correspond- 
ing adjudications  and  opinions  shall  be  quoted  as  authority  in  the 
Court  wherein  he  so  long  and  auspiciously  presided. 

That  you  may  continue,  my  dear  Sir,  to  enjoy  to  the  last  the  same 
vigor  and  activity  of  mind  and  body  which  distinguishes  you  at  an 
age  approaching  the  utmost  limit  assigned  to  man's  earthly  pilgrimage, 
is  the  fervent  prayer  of 

Tour  faithful,  constant,  and  hereditary  i  friend, 

W.  A.  DUER. 

Morristown,  N.  J.,  May  1, 1843. 

P.  S.  Since  the  publication  of  the  former  edition  of  these  Lectures, 
the  venerable  and  profound  Jurist  to  whom  they  were  dedicated,  has 

1  See  Appendix  D. 


Vm  DEDICATION. 

departed  this  life,  and  joined,  as  we  may  humbly  hope,  his  great 
contemporary  in  the  Courts  above.  His  declining  years  were  spent  in 
dignified  retirement,  in  the  consciousness  of  a  well-spent  life,  and  the 
exercise  of  those  Christian  virtues,  and  the  performance  of  those 
Christian  duties  which  promised  him  an  immortality  far  more  glorious 
than  that  which  will  attend  his  works. 

It  will  not,  it  is  trusted,  be  deemed  incompatible  with  the  character 
of  this  work  to  subjoin  what  was  intended,  by  an  anonymous  author, 
as  an  Epitaph  for  the  late  Chief  Justice  of  the  United  States, — fol- 
lowed by  some  other  verses  from  the  same  hand,  —  the  concluding 
triplet  of  which  might  serve  the  same  purpose  for  the  former  Chan- 
cellor of  the  State  of  New  York. 

"  Beneath  this  stone,  within  this  narrow  grave, — 

In  hope  that  God's  free  grace  his  soul  will  save, — .^ 

Lies  what  was  mortal  of  as  pure  a  mind. 

As  e'er  illumed  an  age,  or  blest  mankind: 

Wise,  and  accomplished  in  all  human  lore. 

Yet  ever  prompt  his  frailty  to  deplore ; 

Born  to  instruct,  to  rear,  uphold  a  State, 

And  teach  that  Justice  stamps  a  People  great, 

Marshall's  ambition  was  his  Country's  weal. 

And  on  her  legal  code  to  fix  his  seal : 

As  self-unconscious  he  obtained  renown. 

Disclaiming  worth  or  merit  of  his  own. 

So,  for  acceptance  in  the  Courts  above, 

He  vouched  his  Maker's  word,  his  Saviour's  love. 

Another  still  survives,  worthy  alone 

To  bear  the  mantle  of  the  one  that's  gone ; 

Though  now  retired  in  dignity  and  ease, 

And  full  of  years,  his  body  no  disease. 

His  mind  no  torpor  knows,  nor  amorphy ; 

Both  active  still,  and  active  still  to  be. 

Free  from  the  crowd,  the  bustle,  and  the  strife, 

He  hails  the  passing  hour,  awaits  a  better  life: 

Ah !  who  would  wish  a  nobler  monument. 

Than  that  which  rises  from  a  life  well  spent. 

And  bears  for  Epitaph  the  name  of  Kent?  " 


TO   JOHN    DUER,   LL.D. 

In  dedicating  this  edition  of  a  Treatise  on  Constitutional  Law  to 
you,  my  brother,  I  am  determined  not  less  by  what  is  due  to  your 
Judicial  character,  than  by  the  friendship  and  affection  that,  for  more 
than  threescore  years  and  ten,  has  existed  unbroken  between  us. 

W.  A.  DUER. 

Inglewood,  August  1, 1856. 


PREFACE 

TO   THE   FIRST   EDITION. 


In  submitting  the  following  work  to  the  public,  there 
seems  a  necessity,  as  weU  as  a  propriety,  in  offering  a 
preliminary 'explanation  of  its  character  and  design; 
especially  as  he  whose  name  it  bears  claims  neither  the 
merit  of  originality  for  his  production,  nor  the  title  of 
author  for  himself.  The  present  publication  consists 
substantially  of  the  Course  of  Lectures  on  the  Consti- 
tutional Jurisprudence  of  the  United  States,  delivered 
annually  to  the  Senior  Class  in  Columbia  College, 
while  he  had  the  honor  of  presiding  in  that  venerable 
and  noble  institution.  The  "  Outlines  "  of  those  Lec- 
tures were  published  some  years  ago,  at  the  request  of 
"  The  American  Lyceum,"  an  association  consisting 
principally  of  persons  engaged  in  the  practical  duties  of 
instruction,  who  conceived  that  the  study  of  our  na- 
tional Constitution  might  be  introduced  with  advantage 
into  the  general  system  of  public  education.  That  little 
treatise,  accordingly,  appeared  in  a  form  adapted  to  the 
views  of  those  who  had  suggested  its  Reparation  ; 
which  were,  fitness  as  a  text-book  for  lecturers,  a  class- 
book  for  academies  and  common  schools,  and  a  manual 
for  popular  use.  Except,  therefore,  "  as  to  method  and 
arrangement,"  as  was  observed  in  issuing  it  from  the 
press,  "  there  could  be  little  scope  for  originality  in  a 
work  of  which  the  essential  value  must  depend  on  the 
fidelity  with  which  the  provisions  of  the  Constitution, 


XU  PREFACE. 

the  Legislative  enactments  for  giving  it  effect,  and  the 
Judicial  construction  which  both  have  received,  are 
stated  and  explained."  The  same  remark  may  be  re- 
peated in  reference  to  the  present  publication,  and  a 
similar  disclaimer  made  as  to  its  pretensions  to  origi- 
nality. On  the  present  occasion  the  author  has  again 
"  implicitly  followed  those  guides,  whose  decisions  are 
obligatory  and  conclusive,  upon  such  points  as  have 
been  definitively  settled"  by  judgments  of  the  Supreme 
Courts  of  the  United  States ;  while  "  upon  questions 
which  have  arisen  in  public  discussion,  but  have  neither 
been  presented  for  Judicial  determination  nor  received 
an  approved  practical  construction  from  the  other 
branches  of  the  Government,  he  has  had  recourse  to 
those  elementary  writers  whose  opinions  are  acknowl- 
edged to  pogsess  the  greatest  weight,  either  from  their 
in^nsic  value,  or  their  conformity  with  .the  general 
doctrines  of  the  authoritative  expounders  of  the  Con- 
stitution; and  in  the  absence  of  both  authority  and 
disquisition,  he  has  ventured  to  rely  on  his  own  reason- 
ings, and  has  advanced  his  own  opinions  so  far  only  as 
he  conceives  them  to  be  confirmed  by  undeniable  prin- 
ciples, or  established  by  analogous  cases." 

The  remaining  soiirces  drawn  from  on  that  occasion, 
have  been  resorted  to  again ;  and  he  now  repeats  the 
acknowledgment  of  his  obligations,  not  only  to  the 
illustrious  triumvirate  whose  combined  labors  were 
embodied  in  "  The  Federalist,"  to  Chief  Justice  Mar- 
shall, and  to  Chancellor  Kent,  but  also  to  Mr.  Rawle's 
"  View  of  the  Constitution,"  and  to  the  elaborate  and 
voluminous  "  Commentaries  "  of  the  learned,  ingenious, 
and  indefatigable  Mr.  Justice  Story.^  The  same  obser- 
vation ma^ift  \fe  repeated  as  to  the  different  views  taken 
in  this  work,  as  well  as  in  its  precursor,  from  those 
exhibited  in  the  elementary  treatises  of  the  two  former ; 
with  regard,  in  the  one  case,  to  the  supremacy,  and,  in 
the  other,  to  the  perpetual  obligation  of  the  Federal 

I  The  author  has  also  to  acknowledge  his  oblisatiou  to  Joseph 
Blunt,  Esq.,  for  this  historical  sketch  of  the  Constitution  in  his  Annual 
Register. 


PREFACE.  XIll 

Constitution.  On  both  these  important  points  the 
author  still  adheres  to  principles  more  favorable,  as  he' 
believes,  to  the  powers  and  stability  of  the  National 
Government.  He  did  not,  however,  at  that  time,  nor 
does  he  now,  venture  to  differ  from  such  eminent  jurists, 
without  being  supported  by  the  opinions  of  some  of 
the  most  distinguished  statesmen  of  the  day,  of  different 
parties  —  by  the  author  of  the  celebrated  Proclamation 
of  President  Jackson  against  the  anti-federal  proceed- 
ings in  South  Carolina,  and  the  speeches  of  Mr.  Web- 
ster in  vindication  of  its  doctrines ;  nor  without  being 
sanctioned  by  the  judicial  authority  of  the  late  Chief 
Justice  —  expressly  upon  one  of  the  points  in  question^ 
and  virtually  upon  the  other,  by  his  affirmance  of  prin- 
ciples which  it  involves,  and  by  which  its  decision  must 
eventually  be  governed. 

In  again  referring  to  the  venerated  name  of  Chief 
Justice  Marshall,  the  author  can  but  reiterate  his 
former  wish  to  be  "  understood,  on  this  and  all  other 
occasions,  as  adopting  his  individual  opinions,  not  less 
from  deference  to  their  official  authority,  than  from  the 
conviction  wrought  by  the  luminous  and  profound  rea- 
sonings by  which  they  are  elucidated  and  supported. 
As  this  eminent  and  revered  judge  has  himself  declared 
it  auspicious  to  the  Constitution  and  to  the  country 
that  the  new  government  found  such  able  advocates 
and  interpreters  as  the  authors  of  '  The  Federalist,' ^ 
so  it  may  be  regarded  as  one  of  the  most  signal  advan- 
tages attending  its  career,  that  its  principles  should  have 
been  developed  and  reduced  to  practice  under  a  judicial 
administration  so  admirably  qualified,  in  every  respect^ 
to  expound  them  truly,  and  firmly  to  sustain  them." 
Since  this  feeble  tribute  to  his  wisdom  and  virtues,  this 
great  judicial  magistrate  has  been  summoned  to  the  bar 
of  a  higher  than  any  earthly  tribunal,  there  to  receive, 
we  may  be  certain,  that  justice,  tempered  with  mercy, 

1  To  the  American  reader  it  cannot  be  necessary  to  name  them. 
But  for  the  benefit  of  others,  their  names  are  added.  Alexander 
Hamilton,  James  Madison,  and  John  Jay. 

b 


XIV  PREFACE. 

which  was  the  exemplar  of  his  own  administration ; 
and  to  obtain,  as  we  may  hope,  from  the  favor  of  his 
God,  the  reward  due  to  his  pubHc  services  and  private 
worth.  There  needs  no  monument  to  perpetuate  the 
memory  of  his  virtues  but  the  record  of  his  services. 
These,  too,  may  serve  as  the  fairest  monument  of  the 
great  political  party  of  which  he  was  the  ornament  and 
the  boast.  But  if  to  designate  the  spot  of  earth  conse- 
crated to  his  remains,  a  tablet  be  required,  let  it  be  as 
simple  and  massive  as  was  his  mind,  and  let  it  be  in- 
scribed, "  Here  lies  the  Last  of  the  Federalists." 

Since  the  period  referred  to,  the  statesman  to  whom 
the  work  was  dedicated  —  the  last  surviving  member 
of  that  august  assembly  that  formed  the  Constitution, 
and  sole  remaining  luminary  of  that  bright  constellation 
of  genius  and  talent,  which,  in  vindicating  that  instru- 
ment from  the  objections  of  its  first  assailants,  suc- 
ceeded in  recommending  it  to  the  adoption  of  the 
people  ;  he  who,  in  discharging  the  highest  duties  of  its 
administration,  proved  the  stability  and  excellence  of 
the  Constitution  in  war  as  well  as  in  peace,  and  deter- 
mined the  experiment  in  favor  of  Republican  institu- 
tions and  the  right  of  self-government  ;  and,  in  his 
retirement,  raised  a  warning  voice  against  heresies  in 
the  construction  of  the  national  compact,  which,  for  a 
moment,  threatened  to  overthrow  it  —  has  also  disap- 
peared from  among  us,  full  of  years  and  honors.  The 
enumeration  of  such  services  recalls  the  name  of  Madi- 
son ;  and  great  as  were  those  services,  honored  as  was 
that  name,  the  brightest  glory  that  attends  them  both 
springs  from  the  association  of  his  genius,  his  learning, 
and  his  labors,  with  those  of  his  once  kindred  spirits, 
Hamilton  and  Jay.  "  Vita  enim  mortuorum,  vi  unita 
fortior,  in  memoria  vivorum  est  positaJ' 

Morristown,  N.  J.,  May  1,  1843. 


ANALYSIS. 


Introduction. 

I.  Definition  and  origin  of  political  Constitutions,  as  derived, 

1.  From  tradition,  or  the  act  of  the  Government  itself. 

2.  From  written  fundamental  compacts. 
Either  of  which  may  be  formed, 

1.  On  a  simple  principle  of 

1.  Monarchy. 

2.  Aristocracy. 

3.  Democracy. 

2.  Or  combine  these  three  forms  in  due  proportions,  by 
means  of  the  principle  of  representation,  applied, 

1.  To  the  powers  of  Government ;  which  are, 

1.  The  Legislative. 

2.  The  Executive. 

3.  The  Judicial. 

2.  To  the  persons  represented  in  the  Government. 

II.  Foundations  of  representative  Governments  were  laid, 

1.  Partially,  in  the  British  Colonies,  in  which  were  established, 

1.  Royal  Governments. 

2.  Proprietary  Governments. 

2.  Universally,  in  the  American  States,  upon  the  establishment 
of  independent  Governments,  which  secured  the  enjoyment  of, 

1.  The  inalienable  natural  rights  of  individuals. 

2.  The  political  and  civil  privileges  of  the  citizens,  designed 
for  maintaining,  or  substituted  as  equivalents  for,  natural 
rights. 


XVI  ANALYSIS. 

III.  The  same  fundamental  principles  were  recognized  and  adopted 
upon  the  establishment  of  a  Federal  Government  by  the  people  of 
the  several  States. 

1.  In  regard  to  the  principle  of  representation,  as  applied, 

1.  To  the  three  great  departments  of  Government. 

2.  To  the  individual  citizens  of  the  United  States,  and  to 
the  several  States  of  the  Union. 

2.  In  regard  to  the  distribution  of  the  powers  of  Government,  as 
the  Constitution  of  the  United  States  contains, 

1.  A  general  delegation  of  the  Legislative,  Executive,  and 
Judicial  powers  to  distinct  departments ;  and, 

2.  Defines  the  powers  and  duties  of  each  department  re- 
spectively. 

OUTLINES  of  that  branch  of  Jurisprudence  which  treats  of  the 
principles,  powers,  and  construction  of  the  Constitution,  are  there- 
fore to  be  traced. 

First.  With  regard  to  the  particular  structure  and  organization 

of  the  Government. 
Second.  In  relation  to  the  powers  vested  in  it,  and  the  restraints 
imposed  on  the  States. 
I.  Of  the  structure  and  organization  of  the  Government,  and 
the  distribution  of  its  powers  among  its  several  depart- 
ments. 

1.  Of  the  Legislative  power,  or  Congress  of  the   United 

States. 

1.  Of  the  constituent  parts  of  the  Legislature,  and  the 
modes  of  their  appointment. 

1.  Of  the  House  of  Representatives. 

2.  Of  the  Senate. 

2.  Their  joint  and  several  powers  and  privileges. 

3.  Their  method  of  enacting  laws,  with  the  times  and 
modes  of  their  assembling  and  adjourning. 

2.  Of  the  Executive  power,  as  vested  in  the  President, 

1.  His  qualifications;    the  mode  and  duration  of  his 
appointment,  and  the  provision  for  his  support 

2.  His  powers  and  duties. 

3.  Of  the  Judicial  power. 

1.  The  mode  in  which  it  is  constituted. 

2.  The  objects  and  extent  of  its  jurisdiction. 


ANALYSIS.  XVll 

3.  The  manner  in  which  its  jurisdiction  is  distributed. 

1.  Of  the  Court  for  the  trial  of  Impeachments. 

2.  Of  the  Supreme  Court. 

3.  Of  the  Circuit  Courts. 

4.  Of  the  District  Courts. 

5.  Of  the  Territorial  Courts. 

6.  Of  powers  vested  in  State  Courts  and  Magistrates 
by  laws  of  the  United  States. 

II.  Of  the  nature,  extent,  and  limitation  of  the  powers  vested 
in  the  National  Government,  and  the  restraints  imposed 
on  the  States,  reduced  to  different  classes,  as  they  relate, 

1.  To  security  from  foreign  danger  ;  which  class  compre- 

hends the  powers, 

1 .  Of  declaring  war,  and  granting  letters  of  marque  and 
reprisal. 

2.  Of  making  rules  concerning  captures  by  land   and 
water. 

3.  Of  providing  armies  and  fleets,  and  regulating   and 
calling  forth  the  militia. 

4.  Of  levying  taxes  and  borrowing  money. 

2.  To  intercourse   with  foreign   nations  ;    comprising    the 

powers, 

1.  To  make  treaties,  and  to  send  and  receive  ambassa- 
dors and  other  public  ministers  and  consuls. 

2.  To  regulate  foreign  commerce,  including  the  power 
to  prohibit  the  Importation  of  slaves. 

3.  To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offences  against  the  laws  of 
nations. 

3.  To  the  maintenance  of  harmony  and  proper  Intercourse 

among  the  States,  including  the  powers, 

1.  To  regulate  commerce  among  the  several  States,  and 
with  the  Indian  tribes. 

2.  To  establish  post-oflSces  and  post-roads. 

3.  To  coin  money,  regulate  its  value,  and  to  fix  the 
standard  of  weights  and  measures. 

4.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  public  coin  of  the  United  States. 

5.  To  establish  a  uniform  rule  of  naturalization. 

b* 


XVIll  ANALYSIS. 

6.  To  establish  uniform  laws  on  the  subject  of  bank- 
ruptcies. 

7.  To  prescribe,  by  penal  laws,  the  manner  in  which 
the  public  acts,  records,  and  judicial  proceedings  of 
each  State  shall  be  proved,  and  the  effect  they  shall 
have  in  other  States. 

4.  To  certain  miscellaneous  objects  of  general  utility  ;  com- 

prehending the  powers, 

1 .  To  promote  the  progress  of  science  and  the  useful 
arts. 

2.  To  exercise  exclusive  legislation  over  the  district 
within  which  the  seat  of  Government  should  be  per- 
manently established  ;  and  over  all  places  purchased 
by  consent  of  the  State  Legislatures  for  the  erection 
of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings. 

3.  To  declare  the  punishment  of  treason  against  the 
United  States. 

4.  To  admit  new  States  into  the  Union. 

5.  To  dispose  of,  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  and  other  property  of 
the  United  States. 

6.  To  guarantee  to  every  State  in  the  Union  a  repub- 
lican form  of  government,  and  to  protect  each  of 
them  from  invasion  and  domestic  violence. 

7.  To  propose  amendments  to  the  Constitution,  and  to 
call  conventions  for  amending  it,  upon  the  application 
of  two  thirds  of  the  States. 

5.  To  the  Constitutional  restrictions  on  the  powers  of  the 

several  States ;  which  are, 
1.  Absolute  restrictions,  prohibiting  the  States  from, 

1.  Entering  into  any  treaty  of  alliance  or  confed- 
eration. 

2.  Granting  letters  of  marque  and  reprisal. 

3.  Coining  money,  emitting  bills  of  credit,  or  mak- 
ing any  thing  but  gold  or  silver  coin  a  lawful 
tender  in  payment  of  debts. 

4.  Passing  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts. 


ANALYSIS.  XIX 

5.  Granting  any  title  of  nobility. 
2.  Qualified  limitations  ;  prohibiting  the  States,  without 
the  consent  of  Congress,  from, 

1.  Laying  imposts  on  imports  or  exports,  or  duties 
on  tonnage. 

2.  Keeping  troops  or  ships  of  war  in  time  of  peace. 

3.  Entering  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power. 

4.  Engaging  in  war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  admit  delay. 

6.  To  the  provisions  for  giving  efficacy  to  the  powers  vested 
in  the  Government  of  the  United  States  ;  consist- 
ing of, 

1.  The  power  of  making  all  laws  necessary  and  proper 
for  carrying  into  execution  the  other  enumerated 
powers. 

2.  The  declaration  that  the  Constitution  and  laws  of  the 
United  States,  and  all  treaties  under  their  authority, 
shall  be  the  Supreme  Law  of  the  land. 

3.  The  powers  specially  vested  in  the  Executive  and 
Judicial  departments,  and  particularly  the  provision 
extending  the  jurisdiction  of  the  latter  to  all  cases 
arising  under  the  Constitution. 

4.  The  requisition  upon  the  Senators  and  Representa- 
tives in  Congress;  the  members  of  the  State  Legis- 
latures; and  all  Executive  and  Judicial  officers  of 
the  United  States  and  of  the  several  States,  to  be 
bound  by  oath  or  affirmation  to  support  the  Constitu- 
tion of  the  United  States. 

5.  The  provision  that  the  ratifications  of  the  Conven- 
tions of  nine  States  should  be  sufficient  for  the  es- 
tablishment of  the  Constitution  between  the  States 
ratifying  the  same. 

Conclusion. 


CONTENTS 


Dedications v 

Preface xi 

Analysis xv 

LECTURE    I. 

Introductory 1 

LECTURE    IL 

Fundamental  Principles  of  the  Constitution         .        .        .        .26 

LECTURE    in. 

On  the  Legislative  Power 47 

LECTURE  IV. 

On  the  Executive  Power 76 

LECTURE    V. 

On  the  Judicial  Power Ill 

LECTURE    VL 
On  the  Distribution  of  the  Judicial  Power  among  the  several 

Courts 132 

LECTURE   VIL 
On  the  Powers  vested  in  the  Federal  Government  relative  to 
Security  from  Foreign  Danger 191 


XXU  CONTENTS. 

LECTURE    VIII. 
On  the  Powers  vested  in  the  Federal  Government  for  regulating 

Intercourse  with  Foreign  Nations 227 

LECTURE   IX. 
On  the  Powers  vested  in  the  Federal  Government  for  mainte- 
nance of  Harmony  and  proper  Intercourse  among  the  Slates  ,  275 
LECTURE  X. 
On  the  Powers  vested  in  the  Federal  Government  relative  to 
certain  Miscellaneous  Objects  of  general  Utility       .         .         .314 
LECTURE   XL 
On  the  Constitutional  Restrictions  on  the  Powers  of  the  several 
States 347 

LECTURE    XII. 
On  the  Provisions  for  giving  Efficacy  to  the  Powers  vested  in 
the  Federal  Government 389 

Appendi.K  A. — Declaration  of  Independence     '  .         .         .        .  437 

"         B. — Articles  of  Confederation 443 

«  C— Constitution  of  the  United  States  .  .  .454 
"  D. — Correspondence  with  James  Madison  .  .  .472 
"        E. — Proclamation  of  the  President  of  the  United  States 

of  the  10th  of  December,  1833        .         .         .         .480 
"         F. — Opinion  as  to  the   Constitutional  Validity  of  the 
Laws  of  New  York,  granting  exclusive  Privileges 

of  Steam  Navigation 505 

"         G. — Ordinance  for  the  Government  of  the  Territory 

of  the  United  States  Northwest  of  the  River  Ohio     512 
"         n. — Virginia  Resolutions  of  1 798.     Kentucky  Resolu- 
tions of  1798  and  1799     521 


LECTURES 


ON 


CONSTITUTIONAL    JURISPRUDENCE. 


LECTURES. 


LECTURE   I 


INTRODUCTORY. 


A  KNOWLEDGE  of  the  history,  organization,  and  prin- 
ciples of  the  government  under  which  he  lives,  must  be 
beneficial  to  every  man,  wheresoever  he  may  dwell,  and 
under  whatsoever  form  of  government  his  lot  may  have 
been  cast.  It  may,  indeed,  be  regarded  as  peculiarly 
advantageous  in  free  states,  where  every  citizen  must 
possess  an  interest,  if  not  an  influence  in  the  adminis- 
tration of  public  affairs,  and  it  is  obviously  indispens- 
able where  the  political  rights  of  all  are  equal,  and  the 
obscurest  individual  has  a  voice  in  the  election  of  his 
rulers,  and  is  himself  eligible  to  the  highest  office  in  the 
state. 

It  was,  therefore,  with  reason,  considered  a  defect  in 
the  prevailing  systems  of  education,  that  the  study  of 
our  Constitutional  Jurisprudence  should  have  been  either 
altogether  omitted,  or  deferred  to  that  period  of  life 
when  our  youth  are  called  on  to  participate  in  the  active 
duties  of  society ;  or  that  it  should  have  been  regarded 
1 


2  LECTURES   ON 

as  necessary  only  to  lawyers  and  politicians.  For,  essen- 
tial as  is  a  profound  knowledge  of  the  Constitution  to 
statesmen  and  jurists,  some  acquaintance  with  its  princi- 
ples and  details  must,  in  the  opinion  of  all  whb  entertain 
liberal  views  of  public  education,  and  correctly  estimate 
their  privileges  as  citizens,  be  requisite,  even,  for  those 
whose  ambition  rises  no  higher  than  the  mere  exercise 
of  those  privileges  at  elections  of  their  representatives 
in  the  government,  without  desiring  political  influence 
or  public  station  for  themselves. 

It  is  gratifying,  however,  to  find  that  of  late  years  a 
greater  interest  has  been  manifested  among  the  more 
intelligent  portion  of  the  community,  with  regard  to 
the  origin,  structure,  and  principles  of  our  political  in- 
stitutions. This  certainly  evinces  that  one  class,  at 
least,  of  our  citizens  appreciates  their  value,  and  that 
so  far,  therefore,  they  are  better  understood.  But  both 
reason  and  common  sense  suggest  that  such  informa- 
tion cannot  be  too  soon  acquired,  while  experience 
teaches  us  that  it  cannot  be  too  widely  diffused.  The 
public  interest  and  welfare,  if  not  the  stability  of  the 
system  itself,  not  less  than  the  safety  and  happiness  of 
individuals,  and  the  security  it  affords  to  their  persons 
and  property,  require  that,  in  common  with  other  im- 
portant branches  of  education,  the  knowledge  in  question 
should  be  extended  to  every  portion,  and,  if  possible,  to 
every  member  of  the  body  politic. 

Until  lately,  it  was  a  reproach  to  this  College,  that 
it  sent  forth  its  graduates  more  familiar  with  the  Con- 
stitution of  the  Roman  Republic,  and  the  principles  of 
the  Grecian  confederacies,  than  with  the  fundamental 
laws  of  their  own  country.  To  remedy  the  evil,  it  was 
proposed  to  ingraft  this  new  branch  of  study  upon  the 


CONSTITUTIONAL  JURISPRUDENCE.  8 

general  course  pursued  in  the  Institution  ;  but  in  pre- 
paring the  Lectures  we  are  now  commencing,  I  have  not 
lost  sight  of  their  possible  usefulness  to  others  than 
yourselves,  and  especially  to  foreigners,  in  their  publica- 
tion, at  some  future  day,  subsequent  to  their  completion 
and  delivery  in  this  place.  For  it  will  hardly  be  denied 
that  more  accurate  information  in  regard  to  the  organi- 
zation and  powers  both  of  Federal  and  State  govern- 
ments, is  desirable  in  European  statesmen,  ministers, 
and  lawyers,  while  their  want  of  it  is  not  only  mortifying 
to  our  national  pride,  but  prejudicial  to  our  national 
interests.  Much  vexatious  difficulty,  groundless  misun- 
derstanding, and  fruitless  negotiation  would,  doubtless, 
have  been  prevented,  and  much  needless  embg.rrassment 
and  delay  avoided,  had  the  public  men  of  Great  Britain 
and  France  been  better  informed  with  respect  to  them. 

A  rapid  sketch  of  the  origin  and  progress  of  the 
American  Confederation,  until  it  reached  a  result  so 
auspicious  as  the  establishment  of  the  present  Consti- 
tution, seems  proper  as  an  introduction  to  the  study 
upon  which  we  are  now  to  enter ;  and  this  historical 
review  will  prove,  it  is  trusted,  the  more  useful,  as  it 
will  not  only  serve  to  exhibit  the  genius  and  practical 
excellence  of  the  Government,  but  also  to  facilitate  the 
proposed  investigation  of  its  organization  and  powers. 

While  the  American  people  were  subjects  of  the 
British  crown,  and  the  elder  of  these  States  were  as  yet 
British  colonies,  it  was  perceived  that  their  union  was 
essential  to  their  safety  and  prosperity.  Both  general 
and  partial  associations  were  accordingly  formed  among 
them  for  temporary  purposes,  and  on  sudden  emergen- 
cies, long  before  their  permanent  union,  to  resist  the 
claims  and  aggressions  of  the  mother-country,  a  meas- 


4  LECTURES   ON 

ure  which  produced  the  Revolution,  and  ended  in  the 
acknowledgment  of  the  Colonies  as  free  and  independent 
States.  The  common  origin  and  interests  of  the  New 
England  provinces,  the  similarity  of  their  manners,  laws, 
religious  tenets,  and  civil  institutions,  naturally  led  to  a 
more  intimate  connection  among  themselves,  and  in- 
duced, at  a  very  early  period,  the  habit  of  confederating 
together  for  their  common  defence.  These  colonies,  as 
far  back  as  the  year  1643,  apprehending  danger  from  the 
warlike  and  formidable  tribes  of  Indians  by  which  they 
were  surrounded,  entered  into  an  offensive  and  defensive 
league,  which  they  declared  should  be  firm  and  per- 
petual, as  well  as  that  its  members  should  thenceforth 
be  distinguished  as  "  The  United  Colonies  of  New 
England."  In  this  transaction,  the  provincial  govern- 
ments, who  were  parties  to  it,  acted,  in  fact,  as  inde- 
pendent sovereignties  ;  and  circumstances  enabled  and 
encouraged  them  to  assume  an  exemption  from  the 
control  of  any  superior  power. 

By  the  charters  from  the  crown,  under  which  they 
had  been  founded,  and  which  prescribed  their  respective 
forms  of  government,  and  settled  their  fundamental 
principles,  the  people  of  those  colonies  were  authorized, 
by  the  suffrages  of  the  freemen  of  the  several  towns,  to 
elect,  not  only  their  immediate  representatives  in  the 
popular  branch  of  their  legislatures,  but  also  the  chief 
executive  magistrate,  or  governor,  and  his  assistants,  or 
councilors,  who  formed  a  second  and  coordinate  branch 
of  those  provincial  assemblies.  The  supremacy,  there- 
fore, of  the  British  crown  or  Parliament  over  the  colonies 
in  question  had,  at  all  times,  been  little  more  than  nom- 
inal, in  comparison  with  the  authority  exercised  over 
those  provinces,  where  the  governors  and   councillors 


CONSTITUTIONAL  JURISPRUDENCE.  5 

were  appointed  by  the  Crown,  and  held  their  offices  at 
its  pleasure,  and  which  in  other  respects,  also,  were 
kept  in  closer  and  more  immediate  subjection.  The 
civil  war  in  which  Great  Britain  was  at  that  time 
plunged,  occupied,  moreover,  her  whole  attention  ;  and 
this  measure  of  her  colonies,  tending  so  directly  to 
future  independence,  was  suffered  to  pass  without  much 
notice,  or  any  animadversion. 

From  the  terms  of  this  association,  it  may  justly  be 
regarded  as  the  first  step  towards  the  establishment  of 
independent  government  in  America;  with  some  occa- 
sional alterations,  it  subsisted  for  nearly  half  a  century, 
and  for  a  part  of  that  time  with  the  countenance  of  the 
British  government  ;  nor  was  it  dissolved  until  the 
charters  of  the  New  England  provinces  were,  in  effect, 
annulled  by  James  the  Second.  Subsequently,  how- 
ever, to  that  arbitrary  procedure,  congresses  of  govern- 
ors and  commissioners  from  the  other  colonies,  as  well 
as  from  New  England,  were  held  from  time  to  time,  to 
consult  on  matters  relative  to  their  common  welfare, 
and  to  adopt  measures  for  the  protection  of  the  frontiers. 
An  assembly  of  this  description  took  place  at  Albany 
in  1722.  But  a  more  general  and  memorable  conven- 
tion was  held  at  the  same  place  in  1754,  consisting  of 
commissioners  from  all  the  New  England  colonies,  and 
from  the  provinces  of  New  York,  Pennsylvania,  and 
Maryland. 

This  Congress  was  called  at  the  instance  of  the  gov- 
ernment in  England ;  and  although  the  object  of  the 
ministry  in  proposing  it  was  merely  to  promote  and 
facilitate  the  negotiation  of  treaties  with  the  Indians, 
the  colonial  legislatures,  who  promptly  acceded  to  the 
proposal,  evidently  entertained   more  extensive  views. 


6     .  LECTURES   ON 

Two  of  the  provinces  expressly  instructed  their  dele- 
gates to  enter  into  articles  of  confederation  with  the 
other  colonies  for  their  general  security  in  time  of  peace, 
as  well  as  in  war ;  and  one  of  the  first  acts  of  the  com- 
missioners, when  they  assembled,  was  a  unanimous 
resolution  that  a  union  of  the  colonies  was  absolutely 
necessary  for  their  preservation.  After  rejecting  several 
proposals  for  the  division  of  the  colonies  into  separate 
confederacies,  they  agreed  to  a  plan  of  federal  govern- 
ment for  the  whole,  consisting  of  a  President- General, 
to  be  appointed  by  the  Crown,  and  a  General  Legisla- 
tive Council,  to  meet  once  in  every  year,  and  to  be 
composed  of  delegates  chosen  triennially,  by  the  pro- 
vincial assemblies. 

This  celebrated  plan  of  union  was  drawn  up  by 
Doctor  Franklin,  who  attended  as  a  delegate  from 
Pennsylvania,  and  is  to  be  found  in  the  more  recent 
editions  of  his  works,  with  an  exposition  of  the  reasons 
and  motives  which  guided  him  in  forming  it.  The 
confederacy  was  to  embrace  all  the  then  existing  col- 
onies ;  and  the  rights  of  war  and  peace,  in  respect  to 
the  Indian  nations,  were  to  be  vested  in  the  General 
Council  of  the  confederates,  subject  to  the  immediate 
negative  of  the  President- General,  and  the  ultimate 
approval  of  the  Crown.  It  was  to  possess  the  further 
power  "  to  raise  troops  and  build  forts  for  the  defence 
of  the  colonies,  and  to  equip  vessels  pf  war  to  guard 
the  coasts  and  protect  commerce ; "  and  for  these  pur- 
poses the  General  Council  was  to  have  power  to  levy 
such  general  imposts  and  taxes  as  should  seem  most 
just  and  equal. 

Besides  the  venerable  name  of  Franklin,  there  were 
enrolled  among  the  delegates  to  this  Congress   some 


CONSTITUTIONAL   JURISPRUDENCE.  7 

others  of  the  greatest  distinction  in  our  colonial  history. 
In  the  course  of  their  proceedings,  these  enlightened 
men  asserted  and  promulgated  those  principles,  the 
reception  of  which,  in  the  minds  of  the  people  of  this 
country,  prepared  them  for  future  independence,  and 
laid  the  foundations  of  our  present  national  govern- 
ment. But  the  times  were  not  yet  propitious — the 
season  had  not  yet  arrived,  nor  were  public  sentiment 
and  intelligence  sufficiently  matured  for  so  comprehen- 
sive and  liberal  a  proposition.  The  master-minds  who 
governed  that  assembly  had  gone  before  their  age  ;  and 
their  bold  project  of  continental  union  had  the  singular 
fate  of  being  rejected,  not  only  in  England,  but  by 
every  provincial  legislature.  By  the  mother-country,  it 
was  probably  supposed  that  union  would  soon  reveal  to 
her  colonies  the  secret  of  their  strength,  and  afford  them 
the  opportunity  and  the  means  of  giving  it  effect ;  while 
on  the  part  of  the  colonies,  a  dread  of  the  preponderat- 
ing influence  of  the  royal  prerogative,  in  the  operation 
of  the  proposed  system,  condemned  them  to  remain 
for  some  years  longer,  separate  and  insignificant  com- 
munities, emulous  in  their  obedience  to  the  parent  state, 
and  in  devotion  to  her  interests,  but  jealous  of  each 
other's  prosperity ;  gradually  estranged  by  conflicting 
pretensions  and  narrow  views  of  local  policy;  and,  in 
some  instances,  kept  apart  by  mutual  prejudices,  or 
dissimilarity  in  their  institutions  and  manners.  The 
necessity  of  union  had,  nevertheless,  been  felt;  its  ad- 
vantages perceived ;  its  principles  explained,  and  the 
way  to  it  clearly  pointed  out ;  and  at  length,  the  sense 
of  common  danger  and  oppression  brought  the  colonies 
once  more  together,  and  led  them  to  adopt  the  same 
measures  of  defence  and  security,  not,  indeed,  against 


8  LECTURES   ON 

the  vexatious  and  irregular  warfare  of  the  savage  tribes, 
but  in  resistance  to  the  formidable  claims,  and  still  more 
formidable  power,  of  the  mother-country. 

When  the  first  attack  was  made  by  Parliament  upon 
the  chartered  privileges  of  the  colonists,  and  their  in- 
herent rights  as  subjects  of  the  English  law,  by  the 
celebrated  Stamp  Act  of  1763,  a  congress  of  deputies 
from  all  the  colonial  assemblies  was  recommended  by 
the  popular  branch  of  the  Massachusetts  Legislature ; 
and  in  the  month  of  October,  in  that  year,  delegates 
from  most  of  the  provinces  assembled  at  New  York. 
Without  delay  or  hesitation,  they  published  a  declara- 
tion of  the  rights  and  grievances  of  the  colonists,  in 
which  they  asserted  their  title  to  the  enjoyment  of  all 
the  rights  and  privileges  of  British  subjects,  and  espec- 
ially the  exclusive  power  of  taxing  themselves.  They 
complained  more  particularly  of  the  act  of  Parliament 
imposing  stamp  duties,  and  other  direct  taxes  in  the 
colonies ;  and  their  remonstrances  were  so  far  successful 
that  this  obnoxious  measure  was  rescinded,  although  its 
repeal  was  accompanied  by  a  declaratory  assertion  of 
the  power  of  Parliament  to  tax  the  colonies  in  all  cases 
whatever. 

This  reservation,  however,  of  the  abstract  right  gave 
little  umbrage  to  the  colonists,  who  regarded  it  merely 
as  a  salvo  for  the  offended  pride  of  Great  Britain,  and 
verily  believed  that  no  new  attempt  would  be  made  to 
reduce  the  principle  to  practice.  But  it  was  soon  dis- 
covered that  they  had  reposed  too  much  faith  in  the 
intelligence,  prudence,  and  moderation  of  the  British 
statesmen  of  that  day.  Before  two  years  had  elapsed, 
the  very  men  who  had  consented  to  the  repeal  of  the 
Stamp  Act  brought  into  Parliament  a  bill  equally  objec- 


CONSTITUTIONAL  JURISPRUDENCE.  9 

tionable  in  principle,  though  less  odious  in  its  features 
and  oppressive  in  its  operation ;  and  this  bill,  levying 
taxes  on  the  colonists  without  their  consent,  by  a  legis- 
lature in  which  they  were  not  represented,  became  a 
law,  almost  without  opposition.  After  a  long  course  of 
patient  remonstrance  and  constitutional  resistance  to 
the  execution  of  this  new  act,  a  general  congress  was 
proposed  at  town  meetings  in  New  York  and  Boston, 
and  more  formally  recommended  by  a  majority  of  the 
members  of  the  Virginia  Assembly,  upon  the  dissolu- 
tion of  that  body  in  consequence  of  its  opposition  to 
the  claims  of  Parliament.  The  committees  of  corre- 
spondence established  in  the  several  colonies,  selected 
the  city  of  Philadelphia  as  the  place,  and  appointed  the 
tenth  of  September,  1774,  as  the  time  of  meeting  of 
the  first  Continental  Congress. 

The  members  of  that  illustrious  body  were  in  general 
elected  by  the  colonial  legislatures ;  but  in  some  in- 
stances a  different  method  was  pursued,  which,  for  the 
most  part,  was  adopted  from  necessity.  In  New  Jersey 
and  Maryland,  the  elections  were  made  by  committees 
chosen  in  the  several  counties  for  that  purpose  ;  and  in 
New  York,  where  the  royal  party  being  the  stronger,  it 
was  improbable  that  a  legislative  act  authorizing  the 
election  of  representatives  in  Congress  could  be  ob- 
tained, the  people  themselves  assembled  in  those  places 
where  the  spirit  of  opposition  prevailed,  and  elected 
delegates,  who  were  readily  received  as  members  of  the 
Congress.  The  powers  with  which  the  deputies  of  the 
several  colonies  were  invested  were  of  various  extent. 
Some  were  limited  to  special  objects,  notwithstanding 
the  recommendations  for  their  appointment  had  been 
expressed  in  the  most  general  and  comprehensive  terms, 


10  LECTURES   ON 

and  requested  that  they  should  be  clothed  with  "  au- 
thority and  discretion  to  meet  and  consult  together 
for  the  common  v^elfare."  Most  generally,  they  were 
empowered  to  consult  and  advise  on  the  means  most 
proper  to  secure  the  liberties  of  the  colonies,  and  restore 
the  harmony  formerly  subsisting  between  them  and  the 
parent  state.  In  some  instances,  the  powers  conferred 
seemed  to  contemplate  only  such  measures  as  would 
operate  on  the  commercial  connection  between  the  two 
countries ;  in  others,  the  discretion  of  the  delegates  was 
unlimited. 

Deputies  from  eleven  of  the  provinces  appeared  at 
Philadelphia  on  the  day  appointed,  and  took  into  im- 
mediate consideration  the  calamitous  aspect  of  public 
affairs ;  and  especially  the  sufferings  of  those  colonies 
which  had  been  foremost  and  most  active  in  resistance 
to  the  oppressive  measures  of  the  mother-country.  By 
a  series  of  declaratory  resolutions,  they  asserted  what 
they  deemed  to  be  the  absolute  and  inalienable  rights 
of  the  colonists,  as  men,  and  as  free  subjects  of  Great 
Britain  ;  pointed  out  to  their  constituents  the  systematic 
aggression  which  had  been  pursued,  and  the  impending 
violence  premeditated  against  them  ;  and  enjoined  them, 
by  their  regard  to  honor,  and  their  love  of  country,  to 
renounce  commerce  with  Great  Britain,  as  the  most 
effectual  means  of  averting  the  dangers  with  which 
they  were  threatened,  and  of  securing  those  liberties 
which  they  derived  from  the  bounty  of  their  Creator, 
or  claimed  as  an  inheritance  from  their  fathers. 

This  requisition  received  prompt  and  universal  obe- 
dience ;  and  the  Union  thus  formed,  and  confirmed  by 
these  resolutions,  was  continued  by  successive  elections 
of  delegates  to  the  General  Congress,  and  maintained 


CONSTITUTIONAL  JURISPRUDENCE.  11 

through  every  period  of  the  Revolution  which  imme- 
diately ensued,  and  every  change  in  our  Federal  and 
State  governments,  and  is  revered  and  cherished  by 
every  true  American  as  the  source  of  our  national  pros- 
perity, and  the  only  solid  foundation  of  our  national 
independence. 

In  the  month  of  May,  1775,  a  new  Congress,  consist- 
ing of  delegates  from  twelve  provinces,  clothed  with 
ample  discretionary  powers,  met  at  Philadelphia  ;  and 
soon  after  it  assembled,  the  accession  of  Georgia  com- 
pleted the  confederation  of  the  Thirteen  Colonies  of 
North  America.  These  delegates  were  instructed  to 
"  concert  and  prosecute  such  measures  as  they  should 
deem  most  fit  and  proper  to  obtain  a  redress  of  griev- 
ances ; "  and,  in  more  general  terms,  corresponding  with 
the  formula  of  classic  antiquity,  to  "  take  care  of  the 
liberties  of  the  country."  Charged  thus  solemnly  with 
the  protection  of  the  common  rights  and  interests,  the 
representatives  of  the  American  people  prepared  for 
resistance,  sustained  by  the  confidence,  and  animated 
by  the  zeal,  of  their  constituents.  They  published  a 
declaration  of  the  causes  and  necessity  of  resorting  to 
arms,  and  proceeded  to  levy  and  organize  forces  by  land 
and  sea ;  to  contract  debts  and  emit  a  paper  currency, 
pledging  the  faith  of  the  Union  for  its  redemption  ;  and, 
gradually  assuming  all  the  powers  of  national  sover- 
eignty, this  Congress  at  length  declared  the  United 
Colonies  free  and  independent  States.^ 

Preparatory  to  this  momentous  and  uncompromising 
measure,  by  which  our  Revolution  may  be  said  to  have 
been  consummated,  an  important  preliminary  step  had 

1  Vide  Appendix  A. 


12  LECTURES  ON 

been  taken  by  Congress,  which  in  itself  was  considered 
decisive  of  the  question  of  independence.  It  had  pre- 
viously recommended  to  particular  colonies  to  establish 
temporary  institutions  for  conducting  their  affairs  dur- 
ing the  contest  with  the  mother-country ;  but  when 
independence  was  perceived  to  be  the  inevitable  result, 
it  was  proposed  by  Congress,  to  the  respective  assem- 
blies and  conventions  of  the  provinces  where  no  gov- 
ernment adapted  to  the  exigencies  of  the  crisis  had 
already  been  formed,  to  adopt  such  Constitutions  as 
should  be  most  conducive  to  the  happiness  and  safety 
of  their  immediate  constituents,  as  well  as  of  the  nation 
at  large.  The  provincial  assemblies  acted  on  this  recom- 
mendation ;  and  the  several  colonies,  already  contem- 
plating themselves  as  independent  States,  adopted  the 
principle,  then  considered  visionary  in  Europe,  of  limit- 
ing the  constituted  authorities  by  a  written  fundamental 
instrument ;  and  thus  the  doctrine  of  the  "  Social  Con- 
tract," hitherto  advanced  merely  as  an  ingenious  theory, 
or  regarded  as  a  bold  and  fanciful  speculation,  was 
first  actually  exemplified,  and  successfully  reduced  to 
practice. 

To  secure  and  perpetuate  these  State  institutions,  it 
was  deemed  expedient,  while  these  measures  were  ma- 
turing, to  explain  more  fully,  and  by  a  formal  instru- 
ment, the  nature  of  the  federative  compact,  and  to 
define  both  the  powers  vested  in  the  General  Govern- 
ment, and  the  residuary  sovereignty  of  the  States.  But 
the  measure  was  attended  with  so  much  embarrassment 
and  delay,  that,  notwithstanding  they  were  surrounded 
by  the  same  common  danger,  and  were  together  con- 
tending for  the  same  inestimable  principles  and  objects, 
it  was  not  until  late  in  the  following  autumn  that  the 


CONSTITUTIONAL  JURISPRUDENCE.  13 

discordant  interests  and  prejudices  of  these  thirteen 
distinct  commonwealths  could  be  so  far  blended  and 
compromised  as  to  induce  their  agreement  to  the  terms 
of  the  proposed  Federal  Union ;  and  when  submitted 
to  the  State  legislatures  for  ratification,  the  system  was 
declared  by  Congress  to  have  been  the  result  of  im- 
pending necessity,  consented  to,  not  for  its  intrinsic 
excellence,  but  as  the  best  that  could  be  adapted  to 
the  circumstances  of  the  States  respectively,  and,  at 
the  same  time,  afford  any  reasonable  hope  of  general 
assent. 

These  "  Articles  of  Confederation  "  met  with  still 
greater  obstacles  in  their  progress  through  the  States. 
Most  of  the  State  legislatures,  indeed,  ratified  them  with 
a  promptitude  which  evinced  a  due  sense  on  their  part 
of  the  necessity  of  preserving  the  Confederacy,  and  of 
the  duty,  to  that  end,  of  exercising  a  liberal  spirit  of 
accommodation.  But  some  of  the  States  withheld  their 
assent  for  several  years  after  the  Declaration  of  Inde- 
pendence ;  and  one,  in  particular,  persisted  so  long  in  its 
refusal,  as  to  injure  the  common  cause,  afford  encour- 
agement to  the  enemies,  and  depress  the  hopes  of  every 
Mend  of  America.  The  perception  of  these  conse- 
quences at  length  induced  the  State  in  question  to 
abandon  its  objections  ;  and  on  the  first  of  March,  1781, 
these  articles  of  Union  received,  upon  the  accession  of 
Maryland,  the  unanimous  approbation  of  the  States.' 

By  the  terms  of  this  compact,  cognizance  and  juris- 
diction of  foreign  affairs,  the  power  of  declaring  war 
and  concluding  peace,  and  authority  to  make  unlimited 
requisitions  of  men  and  money,  were  exclusively  vested 

^  Vide  Appendix  B. 
2 


14  LECTURES   ON 

in  Congress ;  and  a  compliance  with  these  powers,  when 
exercised  by  that  body,  was  rendered  obligatory  upon 
the  several  States.  But  these  rights  of  political  suprem- 
acy, extensive  as  they  were,  had  been  conferred  in  an 
insufficient  manner,  and  under  a  most  imperfect  organi- 
zation. The  articles,  indeed,  were  but  a  written  digest, 
and  even  a  limitation  of  the  discretionary  powers  which 
had  been  delegated  to  Congress  in  1775,  and  which  had 
always  been  freely  exercised,  and  implicitly  obeyed. 
The  powers  themselves,  now  formally  enumerated  and 
defined,  might,  nevertheless,  have  proved  competent  for 
all  the  essential  purposes  of  union,  had  they  been  duly 
distributed  among  the  several  departments  of  a  well- 
balanced  government,  and  brought  to  bear  upon  the 
individual  citizens  of  the  United  States  by  means  of  a 
federal  Executive  and  Judicial,  as  well  as  Legislative 
authority.  Congress,  as  then  constituted,  was,  in  fact, 
an  improper  and  unsafe  depository  of  political  power, 
since  the  whole  national  authority,  in  one  consolidated 
mass  of  complicated  jurisdiction,  was  vested  in  a  single 
body  of  men ;  while,  in  imitation  of  all  former  confed- 
eracies of  independent  sovereignties,  the  decrees  of  the 
federal  council  affected  the  States  only  in  their  corporate 
capacity,  as  contradistinguished  from  the  individuals  of 
whom  they  are  composed.  This  was  considered  by  the 
ablest  statesmen  of  that  day  as  the  radical  defect  of  the 
first  Confederation  ;  "  and  although  this  vicious  principle 
did  not,"  as  one  of  them  has  justly  remarked,  "  run 
through  all  the  powers  delegated  to  the  Union,  yet  it 
pervaded  and  governed  those  on  which  the  efficacy  of 
the  rest  depended."  ^     Except  as  to  the  rule  of  appor- 

A  By  Mr.  Hamilton,  in  the  15th  Number  of  "The  Federalist" 
See  also  "  The  Federalist,"  No.  9,  by  Mr.  Madison,  for  further  exam- 


CONSTITUTIONAL   JURISPRUDENCE.  16 

tionment,  Congress  had  an  indefinite  discretion  to  make 
requisitions  for  men  and  money ;  but  they  had  no  au- 
thority to  raise  either  the  one  or  the  other  by  regulations 
extending  to  the  individual  citizens  of  the  States.  Like 
the  warrior  magician  of  the  great  dramatic  poet,  they 
could  "  caU  up  spirits  from  the  vasty  deep,"  but  none 
would  "  come  when  they  did  call."  The  consequence 
was,  that  though  in  theory  the  resolutions  of  Congress 
were  equivalent  to  laws,  yet  in  practice  they  were  found 
to  be  mere  recommendations,  which  the  States,  like 
other  irresponsible  sovereigns,  observed  or  disregarded, 
according  to  their  own  good-will  and  gracious  pleasure. 
The  next  most  palpable  defect,  therefore,  in  the  sys- 
tem, was  the  absence  of  all  power  in  Congress  to  compel 
obedience  to  their  decrees ;  or,  in  legal  parlance,  the 
total  want  of  a  sanction  to  their  laws.  There  was  no 
express  delegation  of  authority  to  use  force  against  de- 
linquent members  of  the  Confederacy,  and  no  such  right 
could  be  ascribed  to  the  federal  head,  as  resulting  from 
construction,  or  derived  by  inference  from  the  nature  of 
the  compact,  inasmuch  as  Congress  was  actually  re- 
stricted from  any  assumption  of  implied  powers,  how- 
ever essential  to  the  complete  exercise  of  those  which 
were  expressly  given.  Fortunately  for  the  country,  there 
was  then  too  much  public  virtue  in  that  body  to  assume  a 
power  not  warranted  by  the  Constitution.  Had  its  mem- 
bers possessed  less  wisdom  and  integrity,  and  stretched 
their  authority  under  the  plea  of  an  imperious  necessity, 
which  might  often  have  been  alleged  on  stronger  and 
more  plausible  grounds  than  at  any  subsequent  period, 

pies;  and  an  observation  on  the  subject  by  Mr.  Jefferson,  in  his 
"Notes  of  Virginia,"  p.  105.  Pennington  &  Gould's  Ed.,  N.  Y., 
1801. 


16  LECTURES   ON 

it  would  have  been  usurpation  ;  and  had  they  been 
clothed  with  the  power  of  enforcing  their  constitutional 
requisitions,  it  might,  from  the  accumulated  jurisdiction 
vested  in  them,  have  proved  fatal  to  public  liberty.  The 
only  remedy,  therefore,  for  a  violation  of  the  compact, 
was  war  upon  the  refractory  party,  by  such  others  of 
the  Confederacy  as  might  think  proper  to  resort  to  it. 
But  the  application  of  this  remedy  would  probably  have 
produced  dismemberment,  and  thus  have  proved  worse 
even  than  the  disease  itself. 

The  want  of  a  mutual  guarantee  of  the  State  gov- 
ernments to  protect  them  from  internal  violence  and 
rebellion ;  the  principle  by  which  the  contributions  of 
the  States  were  made  to  the  common  treasury ;  the 
want  of  a  power  in  Congress  to  regulate  commerce  ; 
the  right  of  equal  suffrage  possessed  by  the  States  in 
Congress,  as  well  as  the  omission  of  distinct  and  inde- 
pendent Executive  and  Judicial  departments,  were  also 
regarded  as  fundamental  errors  in  the  Confederation. 
In  these  leading  particulars,  and  in  some  others  of  infe- 
rior importance,  it  had  proved  totally  incompetent  to 
fulfil  the  ends  for  which  it  had  been  devised.  Almost 
as  soon  as  it  was  finally  ratified,  the  States  began  to 
fail  in  prompt  and  faithful  observance  of  its  provisions. 
As  the  dangers  incident  to  revolution  and  war  receded, 
instances  of  neglect  and  disobedience  became  more 
gross  and  frequent ;  and,  "  by  the  time  peace  was  con- 
cluded," as  was  observed  by  one  of  our  constitutional 
jurists,^  "  the  disease  of  the  government  had  displayed 
itself  with  alarming  rapidity."  The  inequality  in  the 
application  of  the  principle  of  contributions  produced 

1  Chancellor  Kent 


CONSTITUTIONAL  JUKISPRUDENCE.  IT 

delinquencies  in  many  of  the  States ;  and  the  delin- 
quencies of  one  State  became  the  pretext  or  apology 
for  those  of  another,  until  the  project  of  supplying 
the  pecuniary  exigencies  of  the  nation  by  requisitions 
upon  the  individual  States,  was  discovered  to  be  alto- 
gether delusive  in  its  conception,  and  hopeless  in  its 
execution. 

The  Continental  government  being  destitute,  as  we 
have  seen,  of  power  to  adopt  regulations  of  commerce 
binding  on  the  States,  each  State  established  its  sepa- 
rate system  on  such  narrow  and  selfish  principles,  and 
executed  it  in  so  partial  and  unequal  a  manner,  that  the 
confidence  of  foreign  nations  in  our  commercial  integrity 
and  stability,  and  the  mutual  harmony  and  freedom  of 
intercourse  among  the  States  themselves,  were  impaired, 
if  not  destroyed.  The  national  engagements,  indeed, 
seem,  in  most  cases,  to  have  been  abandoned ;  and,  in 
the  indignant  language  of  "  The  Federalist,"  ^  "  each 
State,  yielding  to  the  voice  of  immediate  interest  or 
convenience,  successively  withdrew  its  support  firom  the 
Confederation,  until  the  frail  and  tottering  edifice  was 
ready  to  fall  on  the  heads  of  the  people,  and  crush  them 
beneath  its  ruins." 

In  the  most  persuasive  and  manly  remonstrances. 
Congress  had  endeavored  to  obtain  from  the  States  the 
right  of  levying,  for  a  limited  time,  a  general  impost  on 
goods  imported  fi*om  abroad,  for  the  exclusive  purpose 
of  providing  for  the  discharge  of  the  national  debt. 
But  it  was  impracticable  to  unite  so  many  independent 
sovereignties  in  this  or  any  other  measure  demanded 
for  the  safety  and  honor  of  the   Confederacy.     Disas- 

1  No.  15,  by  Mr.  Hamilton. 
2* 


18  LECTURES   ON 

trous,  however,  as  their  refusal  appeared  at  the  time, 
and  deeply  regretted  as  it  was  by  every  intelligent  friend 
of  the  Union,  it  may  now  be  deemed  providential  that 
the  State  legislatures  withheld  from  Congress  the  power 
solicited ;  for,  had  it  then  been  granted,  it  is  the  opinion 
of  the  constitutional  jurist  to  whom  I  have  already  re- 
ferred, that  "  the  subsequent  effort  to  amend  the  system 
of  federal  government  would  never,  probably,  have  been 
made,  and  the  people  of  this  country  might  have  con- 
tinued to  this  day  the  victims  of  a  feeble  and  incompe- 
tent Confederacy."  The  necessary  tendency  of  affairs 
at  that  period,  was  either  to  an  entire  annihilation  of 
the  national  authority  or  to  a  civil  war  in  order  to  main- 
tain it.  Universal  poverty  and  distress  were  spreading 
dismay  throughout  the  land.  Agricultm-e,  as  well  as 
commerce,  was  crippled ;  private  confidence,  as  well  as 
public  credit,  was  destroyed ;  and  every  expedient  was 
resorted  to  by  men  of  desperate  fortunes  to  inflame  the 
minds  of  the  people,  and  cast  odium  upon  those  who 
labored  to  preserve  the  national  faith,  and  establish  an 
efficient  government.  Notwithstanding  the  sufferings 
of  the  people  and  the  imbecility  of  the  government, 
there  were  many  citizens,  of  high  respectability  and 
undoubted  patriotism,  who  still  adhered  to  the  old  Con- 
federation ;  and,  from  their  preference  or  their  possession 
of  State  authority,  and  their  jealousy  of  federal  power, 
could  see  nothing  in  the  proposed  renovation  of  the 
Union  but  oppression  and  tyranny.  They  apprehended, 
indeed,  nothing  less  than  the  entire  destruction  of  the 
State  governments  by  the  overwhelming  influence  of 
the  national  institutions,  and  determined  to  resist  the 
contemplated  change.  But  a  large  majority  of  those 
who  had  conducted  the  country  in  safety  through  the 


CONSTITUTIONAL  JUKISPRUDENCE.  19 

Revolution,  united  their  influence  to  put  an  end  to  the 
public  calamities,  by  establishing  a  political  system 
which  should  be  adequate  to  the  exigencies  of  national 
union,  and  act  as  an  efficient  and  permanent  govern- 
ment on  the  several  States.  The  foremost  among  these 
patriots  was  Washington.  At  the  close  of  the  revolu- 
tionary war,  he  had  addressed  a  circular  letter  to  the 
governors  of  the  several  States,  urging  an  indissoluble 
union  as  essential  to  the  well-being,  and  even  to  the 
existence,  of  the  nation ;  and  now,  from  his  retirement, 
he  strove,  in  all  his  intercourse  and  correspondence  with 
his  fellow-citizens,  to  impress  upon  the  public  mind  the 
necessity  of  such  a  measure.  At  his  seat  at  Mount 
Vernon,  in  the  year  1785,  it  was  agreed  by  certain  com- 
missioners from  Virginia  and  Maryland,  whose  visit  had 
reference  to  far  inferior  objects,  to  propose  to  their  re- 
spective governments  the  appointment  of  new  commis- 
sioners, with  more  extensive  powers  in  regard  to  the 
commercial  arrangements  between  these  States.  This 
proposal  was  not  only  adopted  by  the  Virginia  Legis- 
lature, but  so  enlarged  as  to  recommend  to  all  the 
other  States  to  unite  in  the  appointment  of  commis- 
sioners from  each,  to  meet  and  consult  on  the  general 
subject  of  the  commercial  interests  and  relations  of  the 
Confederacy.  And  this  measure,  thus  casual  and  lim- 
ited in  its  commencement,  terminated  in  a  formal  prop- 
osition for  a  General  Convention  to  revise  the  state  of 
the  Union. 

When  the  period  arrived  for  the  meeting  of  this 
body,  the  objects  of  its  assembling  had  been  carried 
much  further  than  was  at  first  expressed  by  those  who 
perceived  and  deplored  the  complicated  and  increas- 
ing evils  flowing  from  the  inefiiciency  of  the  existing 


20  LECTUBES   ON 

Confederation.  Representatives  from  New  York,  New- 
Jersey,  Pennsylvania,  and  Delaware  were  all  that  assem- 
bled on  this  occasion,  in  addition  to  those  from  Virginia 
and  Maryland  ;  and  upon  proceeding  to  discuss  the 
subjects  for  which  they  had  convened,  it  was  soon  per- 
ceived that  a  more  general  representation  of  the  States, 
and  powers  more  extensive  than  had  been  confided  to 
the  delegates  actually  attending,  would  be  requisite  to 
effect  the  great  purposes  in  contemplation.  This  first 
Convention,  therefore,  broke  up  without  coming  to  any 
specific  resolution  on  the  particular  matters  referred  to 
them ;  but,  previously  to  adjourning,  they  agreed  to  a 
report  to  be  made  to  their  respective  States,  and  trans- 
mitted to  Congress,  representing  the  necessity  of  ex- 
tending the  revision  of  the  federal  system  to  all  its 
defects,  and  recommending  to  the  several  Legislatures 
to  appoint  deputies  to  meet  for  that  purpose,  in  Con- 
vention, at  Philadelphia,  on  the  second  of  the  ensuing 
May. 

On  receiving  this  report,  the  Legislature  of  Virginia 
immediately  appointed  delegates  for  the  object  specified 
in  the  recommendation ;  and  within  the  year,  every 
State  except  Rhode  Island  had  acceded  to  the  proposal, 
and  elected  delegates  with  power  to  carry  that  object 
into  full  effect.  The  General  Convention,  thus  consti- 
tuted and  empowered,  met  at  Philadelphia  on  the  day 
appointed  ;  and  having  chosen  General  Washington 
(whose  name  was  first  on  the  list  of  the  deputies  from 
his  native  State)  for  their  President,  proceeded,  with 
closed  doors,  to  deliberate  on  the  momentous  and  ex- 
tensive subjects  submitted  to  their  consideration.  The 
crisis  was  most  important  in  respect  to  the  welfare  and 
prosperity  of  America,  if  not  of  the   whole  civilized 


CONSTITUTIONAL  JUKISPRUDENCE.  21 

world.  The  fruits  of  our  glorious  Revolution,  and, 
perhaps,  the  final  destiny  of  Republicanism  itself,  were 
involved  in  the  issue  of  this  experiment  to  reform  the 
system  of  our  National  Government ;  and,  happily  for 
the  people  of  America  —  auspiciously  for  the  liberties 
of  mankind  —  the  Federal  Convention  comprised  a  rare 
assemblage  of  the  best  experience,  talents,  character, 
and  information  which  this  country  afforded,  and  it 
commanded  that  universal  public  confidence  at  home 
and  abroad  which  such  qualifications  were  calculated 
to  inspire.  With  regard  to  the  great  principles  which 
should  constitute  the  basis  of  their  system,  not  much 
contrariety  of  opinion  is  understood  to  have  prevailed ; 
but  on  the  application  of  those  principles,  in  their  vari- 
ous forms  and  intricate  modifications,  an  equal  degree 
of  harmony  was  not  to  have  been  expected.  Eventu- 
ally, however,  the  high  importance  attached  to  the 
preservation  of  the  Union  triumphed  over  local  interests 
and  personal  feelings ;  and  after  several  months  of  ardu- 
ous deliberation,  the  Convention  finally  agreed,  with 
unexpected  and  unexampled  unanimity,  on  that  plan  of 
government  which  is  contained  in  the  Constitution  of 
THE  United  States.^ 

The  new  system  was  directed  by  the  Convention  to 
be  laid  before  Congress,  to  be  by  them  transmitted  to 
Conventions  to  be  chosen  by  the  people  in  each  State, 
for  their  assent  and  ratification.  It  was,  moreover,  pro- 
vided in  the  Constitution  itself,  that,  as  soon  as  it  should 
be  ratified  by  nine  States,  it  should  be  carried  into 
operation  among  them,  in  a  mode  prescribed  by  a  sepa- 
rate act  of  the  Federal  Convention  ;  and  in  their  letter, 

1  Vide  Appendix  C. 


22  LECTURES   ON 

transmitting  it  to  Congress,  they  declared  the  Constitu- 
tion to  be  "  the  result  of  a  spirit  of  amity,  and  of  that 
mutual  deference  and  concession  which  the  peculiarity 
of  their  political  system  rendered  indispensable." 

The  course  pointed  out  by  the  Convention  was  pur- 
sued by  Congress,  and  the  request  formally  commu- 
nicated to  the  State  legislatures.  The  People  were, 
accordmgly,  invited  to  choose  delegates  to  meet  in  each 
State,  for  the  purpose  of  deliberating  and  deciding  on 
the  National  Constitution.  Besides  the  solemn  and 
authoritative  examination  of  the  subject  in  these  assem- 
blies, the  new  scheme  of  government  was  subjected  to 
severe  scrutiny  and  animated  discussion,  both  in  private 
circles  and  in  the  public  prints.  But  neither  the  intrinsic 
merits  of  the  Constitution  itself,  nor  the  preponderating 
weight  of  argument  and  character  by  which  it  was 
supported,  gave  assurance  to  its  advocates  that  it  would 
be  eventually  accepted.  It  contained  provisions  for  the 
preservation  of  the  public  faith  and  the  support  of  pri- 
vate credit  which  interfered  with  the  views,  and  coun- 
teracted the  interests  and  designs,  of  those  by  whom 
public  and  private  credit  were  equally  disregarded  ;  and 
against  the  jealous  opposition  of  such  objectors  the 
powers  of  reason  were  exerted  in  vain,  because  their 
real  motives  could  not  be  avowed.  There  were,  how- 
ever, among  the  opponents  of  the  new  Constitution, 
individuals  of  a  different  character,  upon  whom  the 
force  of  argument,  it  was  hoped,  might  make  its  due 
impression.  Men  of  influence  and  authority  were  to 
be  found  in  every  State,  who,  from  an  honest  conviction 
of  its  justice  and  policy,  were  desirous  of  retaining, 
unimpaired,  the  sovereignty  of  the  States,  and  reducing 
the  Union  to  a  mere  alliance  between  kindred  nations. 


CONSTITUTIONAL  JURISPRUDENCE.  23 

Others  supposed  that  an  irreconcilable  opposition  of 
interests  existed  between  different  parts  of  the  Conti- 
nent, and  that  the  claims  of  that  portion  to  which  they 
themselves  belonged  had  been  surrendered  without  an 
equivalent ;  while  a  more  numerous  class,  who  felt 
themselves  identified  with  the  State  institutions,  and 
thought  their  ambition  restrained  to  State  objects,  con- 
sidered the  government  now  proposed  for  the  United 
States,  in  some  respects,  a  foreign  one  ;  and  were, 
consequently,  disposed  to  measure  out  power  to  the 
National  Legislature  with  the  same  sparing  hand  with 
which  they  would  confer  authority  on  agents  neither 
chosen  by  themselves  nor  accountable  to  them  for  its 
exercise. 

The  friends  and  opponents  of  the  Federal  Constitution 
were  therefore  stimulated  in  their  exertions  by  motives 
equally  powerful ;  and  during  the  interval  between  its 
publication  and  adoption,  every  faculty  of  the  superior 
minds  of  both  the  parties  was  strained  to  secure  the 
acceptance  or  rejection  of  the  new  system.  The  result 
was  for  some  time  extremely  doubtful.  The  amend- 
ments proposed  by  several  of  the  States  as  conditions  of 
their  accession  show  with  what  reluctance  their  assent 
was  given,  and  clearly  evince  that  the  dread  of  dismem- 
berment, rather  than  sincere  approbation  of  the  Con- 
stitution, had  in  many  instances  induced  its  adoption. 
Nevertheless,  the  cause  of  pohtical  wisdom  and  justice 
at  length  prevailed.  Within  one  year  from  its  promulga- 
tion, the  new  Government  was  assented  to  by  eleven  of 
the  States,  and  ratified  by  Congress.  Delaware  was  the 
first  to  accede  to  it ;  and  the  assent  of  New  Hampshire, 
as  the  ninth  State,  rendered  it  certain  that  the  Constitu- 
tion would  be  carried  into  effect  by  the  States  which 


24  LECTURES   ON 

had  already  adopted  it.  The  important  States  of  Vir- 
ginia and  New  York,  in  each  of  which  its  fate  remained 
uncertain,  were  probably  determined  in  its  favor  by  the 
previous  ratification  of  New  Hampshire ;  ^  so  that,  by 
the  spring  of  1789,  the  Federal  Government  was  duly 
organized  under  the  new  Constitution,  and  went  imme- 
diately into  full  and  successful  operation,  without  the 
concurrence  of  Rhode  Island  or  North  Carolina,  who 
were  afterward  admitted,  in  succession,  into  the  Union. 
The  final  establishment  of  this  admirable  system  of 
government,  so  well  adapted  to  the  genius,  character, 
and  circumstances  of  the  people,  and  to  the  situation 
and  extent  of  the  country ;  so  skilfully  ingrafted  upon 
the  preexisting  institutions,  amid  all  the  difficulties  and 
impediments  which  have  been  exhibited,  affords  a  signal 
example  of  the  benignant  influence  of  peaceful  delib- 
eration and  calm  decision,  combined  with  a  spirit  of 
moderation  and  mutual  conciliation,  not  only  beyond 
all  precedent,  but,  when  we  reflect  on  the  fate  of  similar 
attempts  in  other  countries,  almost  beyond  the  hope  of 
imitation.  And  while  the  felicitous  issue  of  this  experi- 
ment, and  the  universal  acknowledgment  of  its  hitherto 
successful  results,  constitute  lasting  proofs  of  the  wisdom 
and  patriotism  of  the  founders  of  our  Government,  we 
must  ever  venerate  their  names,  adhere  to  their  princi- 
ples, and  cherish  the  remembrances  of  services,  which 
are  entitled  equally  to  the  gratitude  and  admiration  of 
their  posterity.  We  shall  never,  it  is  devoutly  to  be 
hoped,  disregard  or  undervalue  the  blessings  which, 
under  Providence,  they  secured  to  us,  nor  forget  the 
dangers  and  evils  which  were  averted  by  their  persever- 

^  Vide  Appendix  D. 


CONSTITUTIONAL  JUKISPRUDENCE.  25 

ing  and  devoted  efforts  —  dangers  and  evils  to  which  the 
people  of  these  States  would  again  be  exposed,  in  every 
degree  and  form  of  aggravation,  should  the  wisdom 
and  energy  of  the  fathers  of  our  country  be  rendered 
abortive  by  the  madness  and  folly  of  their  sons.  If 
threatened  with  such  a  reverse,  may  we  ever  be  ready 
to  respond  to  the  sentiments  called  forth  in  a  happy 
hour  from  one  of  our  late  chief  magistrates,  that  at 
every  sacrifice,  except  of  the  inalienable  rights  and  lib- 
erties which  the  Constitution  was  intended  to  perpetuate, 
"  The  Union  must  be  preserved."  ^ 

1  Vide  Appendix  E. 


26  LECTURES   ON 


LECTURE    II. 

FUNDAMENTAL   PRINCIPLES   OF   THE   CONSTITUTION. 

Having,  in  the  former  Lecture,  presented  a  rapid 
sketch  of  the  origin  and  progress  of  the  American 
Confederation,  down  to  the  establishment  of  the  pres- 
ent Constitution,  I  now  propose  to  treat  more  particu- 
larly of  the  fundamental  principles  on  which  the  Federal 
Government  was  formed,  and  exhibit  a  general  view  of 
its  organization  and  powers.  This  statement  of  the 
subjects  of  discussion  comprises  a  definition  of  the 
terms  by  which  they  are  designated  ;  for  by  a  constitu- 
tion is  meant,  not  only  the  form  in  which  a  government 
is  organized,  but  the  principles  upon  which  it  is  founded; 
and  that  branch  of  jurisprudence — which  treats  of  those 
principles,  of  the  practical  exercise  of  the  powers  of 
government  in  conformity  with  them,  and  the  construc- 
tion to  be  given  to  them  in  such  their  application  —  has 
been  denominated  by  jurists  "  Constitutional  Law." 

It  has  been  justly  observed  by  a  writer  on  this  sub- 
ject,i  that  "  the  origin  of  political  constitutions  is  as 
various  as  their  forms.  In  a  pure  and  unmixed  mon- 
archy, we  seldom  hear,"  he  remarks,  "  of  a  constitution  ; 
in  a  despotism,  never.     The  subjects  or  the  slaves  of 

'  Mr.  Rawle. 


CONSTITUTIONAL  JURISPRUDENCE.  27 

such  governments  may  nevertheless  be  roused  or  driven 
to  the  vindication  of  their  natural  rights  ;  and  the  abso- 
lute king  or  the  obdurate  tyrant  may  be  compelled  to 
adopt  fixed,  if  not  liberal  principles  of  administration, 
or  they  may  voluntarily  concede  them  in  favor  of  their 
subjects.  So,  too,  a  successful  conqueror  may,  from 
motives  of  policy,  establish  certain  forms  and  principles 
for  the  government  of  a  people  whom  he  may  have 
subdued.  In  any  of  these  cases,  if  the  government 
obtained  be  the  result  of  general  consent,  whether 
actually  expressed  or  fairly  to  be  implied,  such  nation 
or  people  may  be  said  to  possess  a  constitution.  The 
same  may  be  affirmed  of  an  aristocracy,  if  the  people 
at  large  agree  to  deposit  all  the  powers  of  government 
in  a  select  few ;  as  it  may  also  be  said  of  a  democracy, 
in  which  the  people  retain,  under  such  modifications  as 
they  conceive  most  conducive  to  their  own  safety  and 
liberty,  all  sovereignty  within  their  own  control.  The 
great  difficulty,  however,  in  every  such  case,  is  to  regulate 
the  subdivisions  of  authority  granted,  so  that  the  portion 
of  it  vested  in  one  department  or  body  of  men,  shall 
bear  a  due  proportion  to  that  vested  in  another.  Each 
branch  of  the  government  should  be  sufficient  for  its 
own  support  in  the  exercise  of  its  appropriate  functions, 
yet  all  should  be  made  to  harmonize  and  cooperate. 

To  alter  and  amend  an  existing  system,  by  adding 
new  parts  to  the  old  machinery,  and  particularly  to 
attempt  to  infuse  a  new  spirit  into  the  existing  gov- 
ernment, contrary  to  its  original  genius,  produces  an 
irregular  and  jarring  combination,  discordant  in  its 
elements,  and  confused  in  its  operation.  An  exempli- 
fication of  this  idea  is  afforded  by  the  late  reform  of 
the  Parliament  in  England,  where,  although  the  elective 


28  LECTURES   ON 

branch  has  been  rendered  a  more  perfect  representative 
of  the  Commons,  the  members  of  the  upper  house  con- 
tinue to  sit  in  their  individual  right,  and  still  constitute 
an  hereditary  and  permanent  body.  "We  Americans 
may  be  pardoned  for  considering  that  the  best  mode  of 
forming  a  political  community  is  the  voluntary  associa- 
tion of  a  sufficient  number  of  individuals,  on  the  ground 
of  an  original  contract,  specifying  the  terms  on  which 
they  are  to  be  united,  and  thus  to  establish  a  new 
constitution  or  plan  of  government  adapted  to  their 
situation,  character,  exigencies,  and  prospects.  Indeed, 
this  may  be  asserted  to  be  the  only  true  origin  and  firm 
basis  of  a  republic. 

The  constitution  of  a  government  on  a  single  princi- 
ple, whether  of  monarchy,  aristocracy,  or  democracy,  is 
undoubtedly  the  most  practical  and  easy,  from  its  greater 
simplicity.  But  a  constitution  may  embrace  any  two 
of  those  principles,  as  that  of  ancient  Rome  and  those 
of  some  of  the  Grecian  States,  and,  in  more  modern 
times,  those  of  Geneva  and  some  of  the  smaller  com- 
munities of  Italy ;  or  a  constitution  may,  like  that  of 
England,  unite  the  three  simple  forms ;  a  government 
of  which  description,  although  antiquity  afforded  no 
example  of  it,  was  pronounced  by  Cicero  to  be,  if  rightly 
organized  and  justly  balanced,  the  most  perfect.  Modern 
times  and  our  own  country  have  shown  that  all  the 
power  conceded  to  an  hereditary  monarch  may  be  safely 
vested  in  the  elective  head  of  a  Democratic  Republic, 
and  that  aU.  the  advantages  arising  from  the  unity  of 
the  executive  power  may  be  secured,  without  necessarily 
incurring  the  evils  of  an  hereditary  succession.  These 
ends  are  effected  by  the  application  of  that  great  dis- 
covery of  modern  politics  the  principle  of  representation. 


CONSTITUTIONAL  JURISPRUDENCE.  29 

By  the  proper  distribution  of  the  powers  of  government 
among  several  distinct  branches,  according  to  this  fun- 
damental principle,  each  of  them  becomes,  in  its  respec- 
tive sphere,  the  immediate  and  equal  representative  of 
the  people,  as  the  direct  source  of  its  authority,  and 
sole  ultimate  depository  of  the  sovereign  power. 

By  the  "  Powers  of  Government,"  I  mean  those  dis- 
tinguished from  each  other,  as  appertaining  to  the  Leg- 
islative, Executive,  and  Judicial  departments  ;  which 
division,  founded  as  it  is  on  moral  order,  cannot  be  too 
carefuUy  preserved.  In  the  wise  distribution  of  these 
powers,  and  the  application  of  proper  aids  and  checks 
to  each,  consists  the  optima  constituta  Respublica,  con- 
templated by  the  Roman  orator  as  an  object  of  desire 
and  admiration,  rather  than  of  hope. 

Should  these  three  powers  be  injudiciously  blended — 
for  instance,  should  the  Legislative  and  Executive,  or 
the  Legislative  and  Judicial  branches  be  united  in  the 
same  hands,  the  combination  would  be  dangerous  to 
public  liberty,  and  the  evils  to  be  apprehended  would 
be  the  same,  whether  the  powers  in  question  were  de- 
volved on  a  single  magistrate,  or  vested  in  a  numerous 
body.  K,  moreover,  the  principle  of  representation  be 
applied  only  to  a  part  of  the  government,  where  other 
parts  exist  independently  of  that  principle,  with  an  equal 
or  superior  weight  to  that  constituted  in  conformity  to 
it,  the  benefits  of  the  one  must  obviously  be  partial,  and 
the  danger  to  be  apprehended  fi-om  the  others,  in  propor- 
tion to  their  predominance. 

As  representation  may  thus  be  partial  in  respect  to 
the  powers  of  the  government,  so  it  may  be  confined 
to  a  portion  only  of  the  governed ;  and  in  this  case,  the 
restriction  is  objectionable  in  exact  proportion  to  the 


80  LECTURES   ON 

number  of  those  excluded  from  representation,  or  from 
the  exercise  of  a  free  and  intelligent  voice  in  the  choice 
of  their  rulers.  In  some  countries  possessing  a  constitu- 
tion, the  right  or  power  of  election  is  variously  limited. 
In  Venice,  it  was  formerly,  and  in  some  of  the  aristo- 
cratical  republics  of  Switzerland,  it  stiU  is,  the  exclusive 
privilege  of  a  few  families.  In  the  limited  or  mixed 
monarchies  of  England,  Holland,  and  Belgium,  it  is 
confined  to  persons  possessing  property  of  a  certain 
description  or  amount.  With  us,  the  rights  of  repre- 
sentation and  suffrage  are,  according  to  the  theory  of 
the  Constitution,  universal ;  but  in  practice  they  both 
are  qualified — without,  however,  impairing  the  general 
principle. 

It  is  in  defining  the  limits  of  the  three  great  depart- 
ments of  government,  and,  by  proper  checks  and  securi- 
ties, preserving  the  principle  of  representation  in  regard 
both  to  the  exercise  of  the  power  and  the  enjoyment 
of  the  right,  that  a  written  constitution  possesses  great 
and  manifest  advantages  over  those  which  rest  on  tra- 
ditionary information,  or  which  are  to  be  collected  from 
the  acts  of  the  government  itself.  If  the  people  can 
refer  only  to  the  ordinances  and  decrees  of  their  rulers 
to  ascertain  their  rights,  it  is  obvious  that,  as  every  such 
act  may  introduce  a  new  principle,  there  can  be  no 
stability  in  the  Constitution.  The  powers  of  the  repre- 
sentative and  of  the  constituent  are  inverted ;  and  the 
Legislature  is,  from  its  omnipotence,  enabled  to  alter 
the  Constitution  at  its  pleasure.  Nor  can  such  laws  be 
questioned  by  individuals,  or  declared  void  by  the  Courts 
of  Justice,  as  they  may  with  us,  where  the  power  of  the 
legislature  itself  is  controlled  by  the  Constitution. 

A  written  constitution,  therefore,  which  may  thus  be 


CONSTITUTIONAL  JURISPRUDENCE.  8X 

appealed  to  by  the  people,  and  construed  and  enforced 
by  the  judicial  power,  is  most  conducive  to  the  happi- 
ness of  the  citizen,  and  the  safety  of  the  Commonwealth  ; 
and  it  was  reserved  for  the  present  age,  and  the  citizens 
of  this  country,  fully  to  appreciate  and  soundly  to 
apply  the  great  principle  of  popular  representation, 
and  to  afford  the  first  practical  example  of  a  "  Social 
Contract."  In  England,  one  only  of  the  coordinate 
branches  of  Government  is  supposed  by  the  Constitu- 
tion to  represent  the  people  ;  and  the  Provincial  Con- 
stitutions of  the  American  Colonies  (with  but  few 
exceptions)  had,  at  the  period  of  our  Revolution,  been 
modelled  in  conformity  with  the  same  theory.  Their 
charters  were  originally  framed,  or  subsequently  modi- 
fied, so  as  to  exclude  the  principle  of  representation 
from  the  Executive  department,  of  which,  as  in  Eng- 
land, the  Judicial  was  considered  as  a  subordinate 
branch.  The  solid  foundations  of  popular  government 
had,  nevertheless,  been  laid;  and  the  institutions  re- 
ceived from  the  mother-country  were  admirably  adapted 
to  prepare  the  way  for  a  temperate  and  rational  Demo- 
cratical  Republic. 

As  the  discoveries  which  had  been  made  in  America 
by  European  navigators,  were  deemed  to  confer  the 
exclusive  right  of  occupancy  upon  their  respective  sov- 
ereigns, those  parts  of  the  Continent  which  had  been 
claimed  as  the  reward  of  English  enterprise,  were  ap- 
propriated as  British  colonies,  either  by  extensive  grants 
of  territory  and  jurisdiction  to  favored  individuals,  or 
by  encouraging  settlers  at  large  by  limited  territorial 
grants,  reserving  the  eminent  domain  of  the  Province  to 
the  Crown,  and  providing  for  the  exercise  of  the  whole 
jurisdiction,  under  its  authority.     Hence  two  sorts  of 


32  LECTURES   ON 

Provincial  Governments  had  arisen  ;  first,  those  denom- 
inated Royal  Governments,  in  which  the  general  dojnain 
continued  in  the  Crown  ;  and,  secondly,  Proprietary 
Governments,  in  which  both  the  territory  and  jurisdic- 
tion were  granted  by  the  King  to  one  or  more  of  his 
subjects.  In  the  former  case,  the  Chief  Executive  Mag- 
istrate was  appointed  by  the  Crown ;  in  the  latter,  by 
the  Proprietaries ;  in  both,  the  Legislative  Power  was 
vested,  wholly  or  partially,  in  the  People ;  subject,  in 
the  one  case,  to  the  control  of  the  King  in  Council ;  in 
the  other,  to  that  of  the  Proprietary.  In  some  few  of 
the  colonies,  indeed,  the  power  of  legislation  was  un- 
controlled, as  we  have  seen,  by  the  parent  state ;  so 
that,  previously  to  the  Revolution,  the  colonists  had  long 
been  accustomed  to  elect  representatives  to  compose 
the  more  numerous  branch  of  their  Legislature,  and,  in 
some  instances,  the  second,  or  less  numerous  branch, 
and  even  their  chief  Executive  magistrate.  No  heredi- 
tary powers  had  ever  existed  in  the  colonial  govern- 
ments, and  all  political  power  exercised  in  them  was 
derived  either  from  the  People  or  from  the  King. 

The  powers  of  the  Crown  being  abrogated  by  the 
successful  assertion  of  our  Independence,  the  People 
remained  the  only  source  of  legitimate  authority ;  and 
when  the  citizens  of  the  several  States  proceeded  to 
form  their  respective  Constitutions,  the  materials  in 
their  possession,  as  well  as  their  former  habits,  and 
modes  of  thinking  and  acting  on  political  subjects,  were 
peculiarly  favorable  to  governments  representative  in 
all  three  departments ;  and,  accordingly,  such  govern- 
ments were  almost  universally  adopted.  Under  various 
modifications  and  forms,  produced  in  a  great  degree  by 
ancient  habits,  the  same  general  principles  were  estab- 


CONSTITUTIONAL  JURISPRUDENCE.  88 

lished  in  every  State.  In  general,  the  Legislative,  Ex- 
ecutive, and  Judicial  powers  were  kept  distinct,  with 
the  manifest  intention  of  rendering  them  essentially 
independent  of  each  other.  The  Legislature  was,  for 
the  most  part,  divided  into  two  branches ;  and  all  per- 
sons holding  offices  of  trust  or  profit  were  excluded 
from  it.  The  Supreme  Executive  Magistrate  was  also 
made  elective  ;  and  a  strong  jealousy  of  his  power  was 
everywhere  apparent.  The  Superior  Judges  received 
their  appointments  from  the  Legislature  or  Executive, 
and,  in  most  instances,  the  tenure  of  their  offices  w^as 
"  during  good  behavior." 

These  principles  formed  the  common  and  original 
basis  of  the  American  republics,  and  were  adhered  to 
in  the  Federal  Constitution,  which,  while  it  unites  them 
as  one  Nation,  guarantees  their  separate,  subordinate, 
and  residuary  sovereignty.  The  same  fundamental 
principles  have  also  been  recognized  and  adopted  in  the 
new  States  since  erected  from  the  territory  ceded  by 
individual  States  for  the  common  benefit,  or  acquired 
by  negotiation  or  purchase,  and  subsequently  admitted 
into  the  Union.  There  were,  however,  several  depar- 
tures from  this  general  outline,  which,  in  most  instances, 
have  been  superseded  by  subsequent  amendments,  but 
in  some  retained  in  the  original  Constitution,  and  im- 
itated in  some  of  those  which  have  been  more  recently 
established.  In  some  cases,  the  Legislature  consisted 
of  a  single  body  ;  but  this  peculiarity  has  since  been 
abandoned.  In  some  of  the  States,  the  tenure  of  Judi- 
cial office  is  for  a  term  of  years.  In  others,  the  Judges 
are  elected  by  the  People ;  as  in  Connecticut,  until  the 
adoption  of  a  new  Constitution  in  1818,  where  they 
also  formed  one  branch  of  the  Legislature.     Such,  also, 


34  LECTURES   ON 

was  the  case  in  Rhode  Island,  whose  Colonial  Charter 
has  even  been  copied,  in  the  first  of  these  particulars, 
by  some  of  the  younger  members  of  the  National  Union, 
although,  in  Rhode  Island  itself,  this  provision,  and  the 
Charter  containing  it,  have  since  been  abrogated,  and  a 
Legislature,  consisting  of  two  branches,  established  by 
a  new  Constitution.  The  qualifications  requisite  to 
confer  the  privileges  of  an  elector,  and  to  constitute 
eligibility  to  office,  are  also  various;  and  the  second 
branch  of  the  Legislature  is,  in  many  instances,  differ- 
ently constituted  in  different  States.  In  some,  a  greater, 
in  others,  a  less  effort  is  discernible  to  render  that  body 
an  effectual  check  upon  the  more  numerous  or  popular 
branch,  either  by  prolonging  the  term  for  which  its 
members  are  elected,  or  requiring  higher  qualifications 
in  them  or  their  constituents. 

In  constituting  the  Executive  Power,  there  appears  at 
first  to  have  been  equal  variety.  It  is  now,  however, 
uniformly  vested,  either  in  whole  or  in  part,  in  a  single 
person.  In  some  States,  he  is  elected  for  longer,  in 
others,  for  shorter  periods.  In  some,  he  is  not  eligible 
for  two  successive  terms ;  in  others,  there  is  no  such 
restriction.  By  the  Constitutions  of  some  of  the  States, 
he  is  invested  with  a  qualified  negative  upon  the  Acts 
of  the  Legislature,  which  in  others  is  withheld  fi:om  him. 
In  some  few  instances,  he  is  intrusted  with  power  to 
make  appointments  to  certain  offices  —  either  absolutely, 
or,  more  generally,  subject  to  the  confirmation  of  a 
Council,  or  of  the  second  branch  of  the  Legislature ; 
whilst,  in  most  of  the  States,  that  power  is  exercised 
exclusively  by  the  two  branches  of  the  Legislature  in 
conjunction.  In  some  States,  the  Chief  Executive  Mag- 
istrate is  enabled  to   pursue   the   dictates  of  his  own 


CONSTITUTIONAL  JURISPRUDENCE.  36 

unbiased  judgment ;  and  in  others,  he  is  divested  of  all 
actual  responsibility  —  either  directly,  by  being  placed 
under  the  control  of  a  Council,  or  indirectly,  from  his 
being  chosen  by  the  Legislative  body,  or  its  more  nu- 
merous branch.  In  general,  however,  the  ancient  insti- 
tutions which  the  Provinces  had  derived  by  Charter 
from  the  Crown  of  Great  Britain,  were,  at  the  change 
of  government,  so  far  preserved  as  was  compatible  with 
the  abolition  of  royal  or  metropolitan  authority  and 
colonial  dependence. 

Among  the  most  valuable  of  the  institutions  retained 
by  the  States  on  the  change  of  Government,  was  that 
system  of  jurisprudence  by  which  the  absolute  and 
inalienable  rights  of  the  People  were  recognized  and 
secured,  the  relative  rights  of  individuals,  and  their 
civil  privileges  regulated  and  maintained ;  and  offences 
against  public  justice  investigated  and  punished.  It 
was  held  as  a  fundamental  maxim,  that  the  colonists, 
as  English  subjects,  were  entitled  to  the  benefits  and 
protection  of  the  Common  Law  of  England,  and  of 
such  parts  of  the  Statute  Law  of  Great  Britain  as 
were  applicable  to  their  situation.  This  system  of  juris- 
prudence prevailed  in  all  the  colonies.  It  was  brought 
from  England  by  the  original  settlers,  in  those  planted 
under  her  authority,  and  had  been  gradually  and  silently 
extended  to  those  Provinces  which  had  been  conquered 
by  her  arms ;  so  that,  before  the  Revolution,  it  had  been 
universally  established  as  their  municipal  code,  so  far 
as  it  was  adapted  to  their  circumstances ;  and  it  was 
claimed  by  the  Congress  of  1774,  as  a  branch  of  those 
"  indubitable  rights  and  liberties  to  which  the  respective 
colonies  were  entitled." 

The  most  essential  of  these   privileges  were  those 


36  LECTURES   ON 

natural  rights  which  are,  indeed,  common  to  all  man- 
kind, but  which,  in  virtue  of  Magna  Charter,  and  other 
fundamental  laws  of  the  mother-country,  were  deemed 
to  be  the  peculiar  birthright  and  inheritance  of  British 
subjects.  These,  according  to  Sir  William  Blackstone, 
comprise  that  residuum  of  natural  liberty  which  is  not 
required  by  the  laws  of  society  to  be  sacrificed  to  public 
convenience,  as  well  as  those  civil  privileges  which 
society  engages  to  provide  in  lieu  of  those  natural  lib- 
erties so  given  up  by  individuals  for  the  public  good. 
In  the  first  class,  the  learned  commentator  comprehends, 

1.  The  right  of  personal  security  ;  2.  The  right  of 
personal  liberty ;  and  3.  The  right  of  private  property.^ 
The  other  privileges  of  the  same  character,  but  subor- 
dinate in  degree,  to  which,  as  English  subjects,  the 
colonists  were  entitled,  were,  1.  The  constitution,  pow- 
ers,  and   privileges   of  their   Provincial    Legislatures  ; 

2.  The  limitation  of  the  King's  prerogative  by  certain 
and  notorious  bounds ;  3.  The  right  of  applying  to 
the  Courts  of  Justice  for  the  redress  of  injuries,  —  the 
most  valuable  incidents  to  which  privilege,  were  the 
right  of  TVial  hy  Jury^^  and  the  benefit  of  the  writ  of 

1  A  statute  vesting  a  certain  freehold  in  A.  without  judgment  in 
law,  has  frequently  been  held  in  the  Federal,  as  well  as  State  Courts, 
to  be  void  as  against  common  right,  and  Magna  Charta.  2  Peters,  268  ; 
2  Dallas,  Z\Q\  1  Bay,  252  \  Harper,  200;  Cooke,  214;  1  Dev.l; 
5  Heym.  106  ;  1  Yeates,  260;  5  Cowen,  346. 

2  The  phrase  "  Common  Law,"  in  the  7  th  Amendment  of  the  Con- 
stitution of  the  United  States,  providing  for  the  trial  by  jury,  is  used 
in  contradistinction  to  Equity,  and  Admiralty,  and  Maritime  jurisdic- 
tion. It  means  not  only  suits  which  the  old  Common  Law  recognized 
among  its  settled  proceedings,  but  all  suits  in  which  legal  rights  are  to 
be  determined  in  contradistinction  to  equitable  rights,  and  cases  of 
Admiralty,  &c.,  jurisdiction.     3  Peters,  433.     A  Territorial  law,  direct- 


CONSTITUTIONAL  JURISPRUDENCE;.  37 

Habeas  Corpus;  the  right  of  petitioning  the  King,  or 
either  branch  of  the  imperial  or  provincial  Legislature, 
for  the  redress  of  grievances ;  and  5.  That  of  keeping 
arms  for  defence  ;  which  was,  indeed,  a  public  allow- 
ance, under  certain  restrictions,  of  the  natural  right  of 
resistance  and  self-preservation.' 

In  these  several  articles  are  contained  what  are  em- 
phatically termed  "  the  Liberties  of  Englishmen."  To 
their  enjoyment,  the  colonists  were  entitled  by  birth- 
right as  British  subjects ;  and  to  vindicate  that  right 
they  first  took  up  arms  against  the  parent  state,  and  ulti- 
mately withdrew  from  her  dominion.  Upon  that  separa- 
tion, and  the  subsequent  establishment  of  Governments 
of  their  own  choice,  they  were  careful  to  provide  for 
the  secure  and  permanent  enjoyment  of  these  their  natu- 
ral rights,  and  of  the  civil  privileges  designed  for  their 
maintenance,  or  substituted  as  their  equivalents.  As 
additional  safeguards  for  their  protection,  they  estab- 
lished, moreover,  those  great  engines  of  modern  opinions, 
freedom  of  speech,  and  of  the  press,  uncontrolled  by  any 
but  proper  moral  restraints.  But  while  some  of  the 
States  expressly  recognized,  and  others  tacitly  accepted, 
as  part  of  their  municipal  code,  those  portions  of  the 
Common  Law  which  had  previously  been  in  force  in 

ing  a  Court  of  Common  Law  to  decide  matters  of  fact,  is  inconsistent 
•with  this  provision  of  the  Constitution.     11  Howard,  4:37. 

1  As  the  Constitution  of  Kentucky  declares  that  "  the  right  of  the 
citizens  to  bear  arms,  in  defence  of  themselves  and  the  State  shall  not 
be  questioned,"  a  statute  "  to  prevent  persons  from  wearing  concealed 
arms,"  was  held  to  be  void.  3  Marshall,  73.  Also  a  statute  of  the 
same  State,  subjecting  free  persons  of  color  to  corporal  punishment 
"  for  lifting  hands  in  opposition  "  to  a  white  person.  Ibid.  But  see 
2  Blackford,  229. 

4 


S8  ,  LECTURES   ON 

the  Colonies,  and  were  now  further  modified  by  the 
change  of  government,  they  universally  abolished,  either 
by  their  Constitutions,  or  by  statutes  deemed  funda- 
mental, that  feature  of  the  English  system  of  real 
property,  which,  in  its  character  of  a  mere  civil  regula- 
tion, is,  nevertheless,  like  most  others  of  the  same  feudal 
origin,  powerfully  and  essentially  political  in  its  effects, — 
I  mean  the  right  of  primogeniture.  This  harsh  and 
inequitable  rule  of  descent,  which,  indeed,  is  not  pecu- 
liar to  England,  but  prevails  in  most  of  the  feudal 
monarchies  of  Europe,  was  rejected  in  all  the  American 
States,  and  each  enacted  its  own  law  of  descents,  dif- 
fering, indeed,  in  detail,  but  agreeing  in  the  general 
principle  of  equal  distribution. 

The  frequent  violation  of  the  natural  and  political 
rights  of  the  colonists  by  both  King  and  Parliament, 
and  their  repeated  denials  of  redress,  were  set  forth  in 
the  Declaration  of  Independence  as  the  cause  and 
justification  of  dissolving  the  mutual  ties  of  sovereignty 
and  allegiance,  which  bound  them  to  each  other ;  and 
upon  forming  the  State  Constitutions,  those  rights 
were,  in  some  form  or  other,  and  with  a  greater  or 
less  degree  of  particularity  and  precision,  enumerated, 
declared  inalienable,  and  reserved  inviolably  to  every 
citizen. 

Such  were  the  institutions  of  the  several  States,  and 
such  the  rights  of  their  individual  citizens,  when  the 
States  and  their  respective  citizens,  became,  conjointly, 
parties  to  the  National  Compact.  The  same  great 
principle  of  representation  which  had  been  embodied 
in  the  State  Constitutions,  was  adopted  as  the  founda- 
tion of  the  Government  established  for  the  Union ;  and 
the  same  national,  political,  and  civil  rights  and  privi- 


CONSTITUTIONAL   JURISPRUDENCE.  39 

leges  which  had  been  declared  to  be  the  inalienable 
inheritance  of  the  people,  as  citizens  of  the  several 
States,  were  asserted  to  belong  to  them  as  citizens  of  the 
United  States.  Among  these,  as  we  have  seen,  are  com- 
prehended such  provisions  of  the  Common  Law  as  were 
applicable  to  their  situation  and  circumstances.  By 
the  Amendments  insisted  upon  by  some  of  the  States, 
as  conditions  of  their  ratification  of  the  Federal  Con- 
stitution, and  eventually  adopted  by  aU,  it  is  declared 
that  "  the  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects  shall  not  be  violated ; " 
that  "  no  warrant  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized  ; "  that  "  no  person  shall  be  held  to 
answer  for  a  capital,  or  otherwise  infamous  crime,  unless 
on  presentment  or  indictment  of  a  grand-jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  and  in  the 
militia  when  in  actual  service  in  time  of  war,  or  public 
danger;"  that  "no  person  shaU  be  subject,  for  the  same 
offence,  to  be  twice  put  in  jeopardy  of  life  and  limb,i 
nor  be  compelled,  in  any  criminal  case,  to  be  a  witness 

1  This  provision  means,  that  no  person  shall  be  tried  a  second  time 
for  the  same  offence,  after  a  trial  by  a  competent  and  regular  jury, 
upon  a  good  indictment,  whether  there  be  a  verdict  of  acquittal  or 
conviction.  2  Sumner,  19  ;  18  Johnson's  Rep.  187;  5  Lett.  139.  And 
it  was  held  by  Story,  J.,  in  2  Sumn.  19,  that  the  Circuit  Courts  of 
the  United  States  could  not  grant  a  new  trial,  in  a  capital  case,  even 
after  a  verdict  of  conviction  rendered  on  a  sufficient  indictment. 
Davis,  Dis.  Judge,  dissenting.  In  Mississippi,  this  Amendment  has 
been  held  to  bind  the  State  Courts,  as  well  as  those  of  the  United 
States.  Walker,  134.  But  see  2  Sumn.  19;  19  Cowen,  820;  Ibid. 
701;  8  Wendell,  100;  12  Cowen,  243,  and  many  other  decisions  of 
the  State  Courts  to  the  same  efi'ect. 


40  LECTURES   ON 

against  himself;  nor  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law ; "  that  "  private  property 
shall  not  be  taken  for  public  use,  without  just  compen- 
sation ; "  that  "  in  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury  in  the  State  or  district  wherein  the  crime 
shall  have  been  committed, —  which  district  shall  have 
been  previously  ascertained  by  law, —  to  be  informed  of 
the  nature  and  cause  of  the  accusation, —  to  be  con- 
fronted with  the  witnesses  against  him,  and  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  the  assistance  of  counsel  for  his  defence;"  that, 
"  in  suits  at  Common  Law,  where  the  value  in  contro- 
versy shall  exceed  a  certain  small  amount,  the  right  of 
trial  by  jury  shall  be  preserved  ; "  that  "  no  fact  tried  by 
a  jury  shall  be  otherwise  reexamined  in  any  Court  of 
the  United  States,  than  according  to  the  rules  of  the 
Common  Law ; "  and  that  "  excessive  bail  shall  not 
be  required,  nor  cruel  and  unusual  punishments  in- 
flicted." 1 

But  these  Amendments  apply  only  to  the  United 
States,  and  not  to  the  States  severally ;  and  the  rights 
secured  by  them  are  subject,  in  their  assertion,  to  some 
modifications  and  restrictions.  Thus,  private  property 
cannot  be  taken  by  the  public  for  merely  ornamental  pur- 
poses. The  purpose  must  be  "  necessary  and  useful."  ^ 
It  may  be  taken  by  a  military  commander  to  prevent  it 
fi*om  falling  into  the  hands  of  an  enemy,  or  for  the  pur- 
pose of  converting  it  to  the  use  of  the  public ;  but  the 
danger  must  be  immediate   and  impending,  and  the 


1  Amendts.  to  Const.  U.  S.  4,  5,  6,  7,  8. 

2  7  Peters,  243  ;  8  Wend.  85  ;  12  Pickering,  48. 


CONSTITUTIONAL   JURISPRUDENCE.  41 

necessity  urgent  —  such  as  will  not  admit  delay,  and 
where  the  action  of  the  civil  authority  would  be  too  late 
in  providing  the  means  which  the  occasion  calls  for. 
Nor  can  such  officer  take  possession  of  private  property 
for  the  purpose  of  securing  the  success  of  an  expedition 
upon  which  he  is  about  to  march  ;  nor  justify  the  tres- 
pass by  showing  the  order  of  his  superior  officer.  If  it 
were  committed  without  the  limits  of  the  United  States, 
an  action  for  it  may  be  maintained  in  the  Circuit  Court 
of  any  district  in  which  the  offender  may  be  found,  where 
the  citizenship  of  the  respective  parties  gives  jurisdiction 
to  the  Court.^  Again:  where  the  Legislature  authorize 
the  taking  of  such  private  property,  the  compensation 
must  be  previously  settled,  either  by  stipulation  between 
the  Legislature  and  the  proprietor,  or  by  Commissioners 
mutually  agreed  on  by  the  parties ;  or  by  the  interven- 
tion of  a  jury ;  ^  and  until  just  indemnity  be  afforded, 
the  power  of  taking  the  property  cannot  be  exercised.^ 
It  is,  however,  sufficient  if  the  indemnity  be  secured. 
The  principle  upon  which  this  doctrine  is  founded,  is 
that  the  owner  of  the  land  takes  it  subject  to  the  right 
of  eminent  domain  in  the  State,  for  public  purposes.* 
The  power  in  question  is  incident  to  the  sovereignty  of 
every  Government,  which,  moreover,  must  judge  of  the 
necessity  or  expediency  of  its  exercise. 

With  respect  to  the  right  of  trial  by  Jury,  the  Amend- 
ment on  that  subject  has  been  held  to  be  restricted  to 
suits  not  of  Equity  or  Admiralty  jurisdiction ;  although 

1  2  Dall.  313. 

3  2  Johns.  Ch.  Rep.  162 ;  1  Baldwin,  205  ;  4  Washington,  C.  C.  601. 

3  13  Howard,  115. 

4  3  Yerg.  41  ;  2  N.  and  M.  387 ;  2  Bay,  38. 

4* 


42  LECTUKES   ON 

admitted  to  embrace  all  others,  whatever  peculiar  form 
they  may  assume,  to  settle  legal  rights.* 

It  has  been  a  subject  of  much  discussion  whether  the 
United  States,  in  their  national  capacity,  have  actually 
adopted  the  Common  Law ;  and  to  what  extent,  if  at 
all,  it  may  be  considered  as  forming  a  part  of  the  Na- 
tional Jurisprudence.  But  however  doubtful  it  may  be 
whether,  in  its  broadest  sense,  and  to  the  same  extent, 
mutatis  mutandis,  that  it  prevails  in  England,  and  in 
some  of  the  States,  that  code  is  recognized  as  the 
Common  Law  of  the  Union,  it  cannot  be  denied  that 
it  forms  the  substratum  of  the  laws  of  all  its  original 
members,  and,  consequently,  of  the  new  States  formed 
from  their  subdivision  ;  nor,  that  the  Constitution  of  the 
United  States,  as  well  as  the  Constitutions  and  laws  of 
the  several  States,  was  made  in  reference  to  the  pre- 
existing validity  of  the  Common  Law  in  the  Colonial 
and  State  Governments.  In  many  instances,  the  lan- 
guage of  these  public  acts  would  be  inexplicable  with- 
out recourse  to  the  Common  Law  of  England ;  and, 
not  only  is  the  existence  of  that  system  supposed  by 
the  Constitution  of  the  United  States,  but  it  is  con- 
stantly appealed  to  for  the  construction  of  powers 
granted  to  the  Federal  Government.  The  general  ques- 
tion, however,  as  to  the  application  and  influence  of 
the  system  in  reference  to  our  National  institutions, 
has  not  been  settled  upon  clear  and  definite  principles, 
and  may  still  be  regarded,  especially  in  civil  cases,  as 
open  for  further  judicial  investigation.  The  prevailing 
opinion,  at  present,  seems  to  be,  that  under  the  Federal 

1  1  Baldw.  221 ;  1  Ham.  247,  249  ;  4  Ibid.  253 ;  2  Greenleaf,  5,  255 ; 
3  Ibid.  97  ;  7  Ibid.  273 ;  3  Watts,  294  ;  7  Mass.  Rep.  395  ;  2  Bailey, 
321 ;  Miner,  75  ;  3  Steward,  42. 


CONSTITUTIONAL  JURISPRUDENCE.  43 

Government,  the  Common  Law,  considered  as  a  source 
of  jurisdiction,  was  never  in  force  ;  but  considered 
merely  as  a  means  or  instrument  of  exercising  the  juris- 
diction conferred  by  the  Constitution,  it  does  exist  in 
full  validity,  and  forms  a  safe  and  beneficial  portion 
of  our  National  Code. 

The  Constitution  erected  on  this  basis,  and  from  these 
materials,  is  declared  by  its  preamble,  to  be  "  ordained 
and  established  by  the  People  of  the  United  States,  in 
order  to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  themselves  and  their  posterity." 
By  the  terms,  therefore,  of  this  compact,  the  States  are 
no  longer  known  to  each  other  merely  in  their  sovereign 
and  corporate  capacities ;  but,  without  destroying  their 
previous  separate  organization,  the  People  of  the  respec- 
tive States  united  with  each  other  in  founding  a  new 
Government  operating  directly  on  themselves  as  indi- 
viduals, for  the  attainment  of  objects  for  which  neither 
the  States  separately,  nor  the  former  Confederation  had 
been  found  competent.  The  principle  of  representa- 
tion is  applied  in  it,  not  only  to  the  individual  citizens 
of  the  respective  States  as  citizens  of  the  United  States, 
but  also  to  the  individual  States  themselves ;  and  it 
pervades  the  three  great  departments  of  which  the 
Government  consists. 

Besides  a  general  delegation  of  the  Legislative,  Ex- 
ecutive, and  Judicial  powers  to  distinct  departments, 
so  far  as  was  necessary  to  effect  the  purposes  of  Na- 
tional Union,  the  Constitution  specially  defines  the 
powers  and  duties  of  each  of  those  branches  of  the 
Government.     This  was  essential  to  peace  and  safety 


44  LECTURES   ON 

in  a  Government,  invested  with  specific  powers  for 
national  objects,  and  formed  from  the  union  of  several 
independent  States,  as  well  as  of  the  individuals  com- 
posing them ;  each  of  the  former  yielding,  for  that 
purpose,  the  requisite  portion  of  its  sovereignty,  while 
it  retained  the  exclusive  control  of  its  local  concerns. 

In  analyzing  the  Federal  Constitution,  it  may,  there- 
fore, be  considered,  as  has  been  already  indicated,  under 
two  principal  points  of  view,  viz  :  — 

First.  With  regard  to  the  particular  structure  and 
organization  of  the  Government,  and  the  distribution 
of  its  powers  among  the  several  branches  ;  in  reference 
to  which,  the  necessary  provisions  for  their  organization 
into  separate  departments, —  for  making,  executing,  and 
expounding  the  laws, — for  rendering  efficient  those 
powers, —  and  for  confining  them  to  their  respective 
spheres,  as  well  as  for  ascertaining  the  limits  between 
the  National  and  State  jurisdictions, —  are  all  contained 
in  that  instrument. 

Secondly.  With  regard  to  the  nature,  extent,  and 
limitation  of  the  powers  conferred  on  the  Government 
of  the  Union,  and  the  restraints  imposed  on  the  State 
governments. 

As  different  views  and  interests  have  at  different 
times  prevailed,  different  theories  for  the  construction  of 
the  Constitution  have  been  advanced.  It  has  some- 
times been  regarded  as  a  mere  confederacy  or  alliance 
between  the  States,  implying  no  surrender  of  their 
sovereign  power  or  character ;  but  this  opinion  is  mani- 
festly inconsistent  with  the  nature  of  the  Federal  com- 
pact, as  explained  by  judicial  interpretation  of  conclusive 
authority,  as  will  be  seen  hereafter.  Some  jurists  and 
politicians,  however,  who,  although  they  admit  that  it 


CONSTITUTIONAL  JURISPRUDENCE.  4^ 

constitutes  a  Government,  contend  that,  inasmuch  as  it 
establishes  a  Government  of  limited  powers,  it  should 
be  construed  strictly ;  whilst  others  have  asserted  that, 
from  the  extensive  and  high  objects  to  be  accomplished 
by  the  exercise  of  those  powers,  the  most  liberal  inter- 
pretation should  be  allowed.  As,  on  the  one  hand,  a 
strict  adherence  to  the  letter,  without  regarding  the 
spirit,  or  pursuing  the  manifest  sense  of  the  instrument, 
can  only  proceed  from  groundless  jealousy,  or  concealed 
hostility  to  the  system,  so,  on  the  other,  a  liberal  con- 
struction may,  from  the  possession  or  desire  of  power 
under  it,  be  carried  to  a  pernicious  extreme.  Limita- 
tions and  restrictions  may  be  conceived  to  exist  by 
some,  which  would  render  nugatory  the  National  au- 
thority, and  were,  therefore,  never  meant  to  be  imposed  ; 
whUe  concessions  of  power  may  be  imagined  or  assumed 
by  others,  incompatible  with  the  sovereignty  retained 
by  the  States,  if  not  unnecessary  to  give  effect  to  the 
Federal  supremacy.  The  true  rule  of  interpretation 
seems  to  be  no  other  than  that  which  is  applied  in  all 
cases  of  correct  and  impartial  exposition,  viz  :  to  de- 
duce the  meaning  of  the  contract  from  its  known  design 
and  entire  language, —  to  reconcile,  and,  if  possible,  to 
give  effect  to  every  part  of  the  instrument,  and  at  the 
same  time,  to  preserve  the  unity  and  harmony  of  the 
whole,  in  due  regard  to  the  expressions,  as  well  as  to 
the  intentions,  of  the  parties. 

As  was  observed  by  Mr.  Justice  Story,  in  delivering 
the  opinion  of  the  Court  in  a  leading  and  important 
case,i  "  it  will  be  probably  found,  when  we  look  to  the 
character  of   the   Constitution   itself,  that  the  objects 

,  1  In  Prigg  V.  The  Commonwealth  of  Pennsylvania,  16  Peters,  539. 


46  LECTURES   ON 

which  it  seeks  to  attain,  the  powers  which  it  confers, 
the  duties  which  it  enjoins,  and  the  rights  which  it 
secures,  as  well  as  to  the  known  historical  fact  that 
many  of  its  provisions  were  matters  of  compromise  of 
opposing  interests  and  opinions,  that  no  uniform  rule 
of  interpretation  can  be  applied  which  may  not  allow, 
even  if  it  does  not  positively  demand,  many  modifica- 
tions in  its  actual  application  to  particular  clauses. 
Perhaps,"  said  he,  "  the  safest  rule  of  interpretation, 
after  all,  will  be  found  to  be  to  look  to  the  nature  and 
objects  of  the  particular  powers,  duties,  and  rights,  with 
all  the  lights  and  aids  of  contemporary  history,  and  to 
give  to  the  words  of  each,  such  operation  and  force, 
consistent  with  their  legitimate  meaning,  as  to  fairly 
secure  and  attain  the  ends  proposed." 

On  many  questions  which  have  already  arisen,  we 
have  the  benefit  of  equally  learned  elucidations  of  the 
judicial  departments  of  the  General  Government,  and 
of  many  of  the  State  Governments ;  and  wherever  the 
Supreme  federal  tribunal  has  pronounced  its  solemn 
decision,  its  authority  must  be  deemed  conclusive  ;  be- 
cause that  Court,  and  that  Court  alone,  possesses  ulti- 
mate and  final  jurisdiction  upon  all  points  of  controversy 
arising  under  the  Constitution  of  the  United  States. 
But  where  a  guide  so  certain  and  authoritative  cannot 
be  found,  we  must  endeavor,  with  the  aid  of  inferior 
lights,  to  discover  the  true,  but  latent  meaning  of  a 
Constitution,  which,  in  the  language  of  that  venerable 
and  accomplished  jurist,  the  late  Chancellor  of  New 
York,  "  must  always  be  more  admired,  as  it  is  more 
considered,  and  better  understood." 


CONSTITUTIONAL  JURISPRUDENCE.  47 


LECTURE    III. 


OF  THE   LEGISLATIVE  POWER. 


The  first  general  point  of  view  in  which  it  was  pro- 
posed to  consider  the  Federal  Constitution,  was  "  with 
regard  to  the  particular  structure  and  organization  of  the 
Government,  and  the  distribution  of  its  powers  among  its 
several  branches.^'' 

I  have  already  had  occasion  to  advert  to  the  rule 
inculcating  the  separation  of  the  Legislative,  Executive, 
and  Judicial  departments,  and  to  remark  that  it  had 
been  .substantially  adhered  to  in  framing  our  National 
Government.  These  different  branches,  however,  have 
not,  in  all  cases,  been  kept  entirely  distinct ;  and  it 
therefore  becomes  necessary  to  ascertain,  in  limine,  the 
meaning  of  a  political  apothegm,  of  which  none  is  of 
more  intrinsic  value,  or  stamped  with  the  approbation 
of  a  more  enlightened  authority. 

From  the  sense  in  which  the  maxim  in  question  was 
first  applied  by  Montesquieu  to  the  English  Constitu- 
tion, as  well  as  from  the  mode  in  which  it  has  been 
practically  acknowledged  in  our  State  Constitutions,  it 
is  evident  that  it  was  never  understood  to  require  that 
the  three  departments  should  be  wholly  unconnected 
with  each  other.  On  the  contrary,  it  has  been  satisfac- 
torily shown  by  the  authors  of  "  The  Federalist,"  ^  that 

1  In  No.  47,  by  Mr.  Madison. 


48  LECTUKES   ON 

unless  they  be  so  far  connected  and  blended  as  to  give 
to  each  a  constitutional  control  over  the  others,  the 
degree  of  separation  which  the  rule  requires,  cannot  be 
maintained.  It  is,  indeed,  obvious,  that  the  powers 
properly  belonging  to  one  of  the  departments  ought 
not  to  be  directly  and  completely  administered  by  either 
of  the  others.  It  is  equally  clear  that,  in  reference  to 
the  others,  neither  branch  should  possess,  directly  or 
indirectly,  an  overruling  influence  in  the  exercise  of 
their  peculiar  powers ;  and  although,  in  our  Govern- 
ments, each  department  derives  its  authority  from  the 
same  source,  and  equally  represents  the  People,  yet  the 
Legislative  branch,  as  its  constitutional  powers  are  at 
once  more  extensive,  and  less  susceptible  of  precise 
limitation  than  either  of  the  others,  must  necessarily 
possess  a  greater  preponderance  in  the  political  system, 
and  act  with  greater  force  upon  the  public  mind.  In 
order,  therefore,  to  maintain  in  practice  the  requisite 
partition  of  power,  the  internal  structure  of  the  Govern- 
ment should  be  so  contrived  as  to  render  its  constituent 
parts,  by  their  mutual  relations,  the  means  of  keeping 
each  other  within  their  proper  spheres  of  action.^ 

1  There  is  nothing,  however,  in  the  Constitution  of  the  United 
States  which  forbids  the  Legislature  of  a  State  to  exercise  Judicial 
functions ;  and,  accordingly,  in  some  of  the  States,  where  no  such 
restraint  exists,  it  has  been  the  practice  for  the  Legislature  to  grant 
appeals  and  new  trials  in  civil  suits.  But  a  State  Legislature  cannot 
annuV  the  jurisdiction  of  the  Federal  Courts ;  nor,  as  it  seems,  authori- 
tatively declare  what  the  law  is,  or  has  been,  but  only  what  it  shall  be. 
2  Pete7-s,  413  ;  2  Root,  350;  2  Dall.  419,  note;  3  Ibid.  309  ;  3  Greenl. 
384;  2  Cranch,  272;  5  Ibid.  115;  4  Pick.  23.  But  this  must  be 
understood  to  be  meant  when  exercising  Judicial  powers.  See  2 
Peters,  660  ;  19  Mass.  Rep.  328  ;  1  N.H.199]  4  Ibid.  572  ;  4  Serg. 
§•  Rawle,  435 ;    Walker,  258 ;  4  Munro,  91-381  ;    6  Ibid.  594 ;    10 


CONSTITUTIONAL  JURISPRUDENCE.  49 

The  great  security  against  a  gradual  concentration 
of  the  several  powers  of  government  in  the  same  hands, 
consists  in  giving  to  the  persons  who  administer  them 
in  one  department,  the  necessary  constitutional  means 
and  personal  motives  to  resist  encroachments  from  the 
others.  A  dependence  on  the  people  is,  no  doubt,  the 
primary  control  over  the  Government ;  but  experience 
had  shown  to  the  framers  of  our  Constitution,  the 
necessity  of  auxiliary  precautions ;  and  the  remedy  they 
adopted  for  the  natural  predominance  of  the  Legislative 
authority,  was  the  division  of  the  Legislative  body  into 
two  branches,  and  rendering  them,  by  different  modes  of 
election,  and  principles  of  action,  as  little  connected  with 
each  other  as  the  nature  of  their  common  functions,  and 
their  dependence  on  the  people,  would  admit.  The  com- 
parative weakness  of  the  Executive  branch,  on  the  other 
hand,  was  fortified  by  investing  it  with  a  qualified 
negative  upon  the  Acts  of  the  Legislature,  and  con- 
necting it  with  the  weaker  branch  of  that  stronger 
power,  by  allowing  the  latter  to  participate  in  certain 
Executive  duties ;  whUe  the  Judicial  department  was 
deemed  to  be  equally  secure,  from  the  nature  of  its 
constitutional  powers,  the  permanency  of  its  character, 
and  the  independent  tenure  by  which  its  functionaries 
hold  their  offices.  Thus  the  mutual  participation,  to  a 
limited  extent,  of  the  several  branches  of  the  Govern- 
ment in  each  other's  powers,  is  rendered  subservient  to 
their  mutual  independence,  and  the  apparent  violation 
of  a  fundamental  principle  of  the  Constitution,  con- 
verted into  a  security  for  its  preservation. 

I  now  proceed  to  examine  and  explain  the  organiza- 

Yerg.  69;  3   Gre^nl  326  ;  4  Ibid.  140;  2    Chipm.  77;  1  Ack.ZU\ 
Hardin,  856. 

5 


60  LECTURES   ON 

tion  of  these  separate  departments  in  their  order,  and 
commence  with  a  review  of  the  Legislative  Power; 
under  which  title  I  shall  consider :  — 

First.  The  constituent  parts  of  the  Legislature,  with 
the  mode  of  their  election,  or  appointment. 

Secondly.  Their  joint  and  several  powers  and  priv- 
ileges. 

And,  Thirdly,  Their  method  of  enacting  laws,  with 
the  times  and  modes  of  their  assembling  and  adjourning. 

L  All  Legislative  powers  granted  by  the  Constitution, 
are  vested  in  a  Congress  of  the  United  States, 
consisting  of  a  Senate,  and  a  House  of  Representa- 
tives.^ The  terms  conferring  the  Legislative  authority 
import  its  limitation  to  the  objects  specified  in  the 
Constitution.  And  besides  the  end  already  stated  to 
have  been  proposed  by  the  division  of  the  Legislature 
into  two  branches,  another  important  object  is  accom- 
plished by  it,  and  that  is  the  preventing  of  the  evil 
effects  of  excitement  and  precipitation,  which  had  been 
found,  by  sad  experience,  to  exert  a  powerful  and  dan- 
gerous sway  in  single  assemblies.  No  portion  of  the 
political  history  of  mankind,  according  to  the  elder 
President  Adams,  in  his  celebrated  Defence  of  our 
American  Constitutions,  is  more  full  of  instructive 
lessons  on  this  subject,  or  contains  more  striking  proofs 
of  the  factious  instability  and  turbulent  misery  of  States 
under  the  dominion  of  a  single  unchecked  Legisla- 
ture, than  the  annals  of  the  Italian  Republics  of  the 
middle  ages.  They  arose  in  great  numbers,  and  with 
dazzling,  but  transient  splendor,  in  the  interval  between 
the  falls  of  the  Western  and  Eastern  Empires,  and  were 

1  Const  U.  S.,  Art  L  Sect  i. 


CONSTITUTIONAL  JURISPRUDENCE.  51 

all  constituted  with  a  single  unbalanced  Legislative 
Assembly.  They  were  alike  wretched  in  existence,  and 
all  ended  in  similar  disgrace.  At  the  commencement 
of  the  first  French  Revolution,  many  of  their  specula- 
tive politicians  seem  to  have  been  struck  with  the  sim- 
plicity  of  a  Legislature,  consisting  of  a  single  Chamber, 
and  concluded  that  more  was  useless  and  expensive. 
This  led  that  veteran  statesman  to  write  and  publish, 
during  his  diplomatic  residence  in  Europe,  his  great 
work  entitled  "  A  Defence  of  the  Constitutions  of  Gov- 
ernment of  the  United  States,^''  in  which  he  vindicates, 
with  great  learning  and  ability,  the  advantage  and 
necessity  of  dividing  the  Legislature  into  two  branches, 
and  of  distributing  the  powers  of  government  among 
distinct  departments.  He  reviewed  the  history,  and  ex- 
amined the  Constitutions,  of  all  the  mixed  and  free 
governments  which  had  existed  from  the  earliest  records 
of  time,  in  order  to  deduce,  with  more  certainty  and 
force,  his  great  practical  truth,  that  single  Legislatures 
without  check  or  balance,  or  a  Government  with  all 
authority  collected  in  one  centre  or  department,  were 
violent,  intriguing,  corrupt,  and  tyrannical  dominations 
of  majorities  over  minorities,  uniformly  and  rapidly 
terminating  their  career  in  profligate  despotism;  and 
the  correctness  of  his  deduction  was  amply  confirmed 
by  the  subsequent  example  of  France. 

The  visionary  notion  of  a  single  Assembly  was  em- 
bodied in  the  Constitution  adopted  in  that  country  in 
1791 ;  and  the  same  false  and  vicious  principle  con- 
tinued for  some  time,  to  prevail  with  the  sublimated 
theorists  of  that  period.  A  single  chamber  was  again 
established  in  the  plan  of  government  published  by  the 
Convention   of  1793.      But  their    own   sufferings,   at 


52  LECTUKES   ON 

length,  taught  the  French  people  to  listen  to  that  oracle 
of  wisdom,  the  experience  of  other  nations  and  other 
ages,  which,  amid  the  tumult  and  violence  of  the  pas- 
sions that  influenced  them,  they  had  utterly  disregarded, 
and  which,  under  any  circumstances,  their  national 
vanity  would  probably  have  led  them  to  despise.  "  No 
people,"  said  Boissy  (TAnglas,  one  of  their  greatest 
orators,  "  can  testify  to  the  world,  with  more  truth  and 
sincerity  than  the  French,  the  dangers  inherent  in  a 
single  Legislative  body,  and  the  point  to  which  the 
faction  may  mislead  an  assembly  without  check  or 
counterpoise."  We  find,  accordingly,  that  in  the  next 
of  their  ephemeral  Constitutions,  which  was  brought 
forth  in  1797,  there  was  a  division  of  the  Legislature 
into  two  branches,  and  the  idea  of  two  chambers  has 
never  been  abandoned,  either  under  the  military  des- 
potism of  the  first  Empire,  in  the  Charters  obtained 
upon  the  restoration  of  the  Monarchy — in  the  subse- 
quent revolution  and  change  of  dynasty — or  upon  the 
revival  of  a  second  despotic  Empire. 

Our  country  had,  indeed,  afforded  more  than  one 
instance  in  point,  in  which,  fortunately,  however,  the 
evil  consequences  were  by  no  means  so  great  as  those 
experienced  in  France.  The  Legislatures  of  Pennsyl- 
vania and  Georgia  consisted  originally  of  a  single 
House,  but  the  instability  and  passion  which  marked 
their  proceedings,  far  short  as  these  were  of  the  least 
of  the  atrocities  of  the  French  National  Convention, 
were  the  subject  of  much  public  animadversion  at  the 
time ;  and  in  the  subsequent  reforms  of  their  Constitu- 
tions, the  people  of  those  States  were  so  sensible  of 
this  defect,  and  of  the  evils  they  had  suffered  from  it, 
that  a  Senate  was  introduced  into  the  amended  Con- 
stitution of  each. 


CONSTITUTIOIfAL  JURISPRUDENCE.  5Si^ 

There  was  a  further  reason  for  a  division  of  the 
Legislative  powers  in  the  Government  of  the  United 
States,  arising  from  its  federative  character,  and  which, 
from  its  peculiar  importance,  deserves  a  fuller  explana- 
tion. On  those  just  principles  of  public  polity  on  which 
our  Constitution  is  founded,  it  is  essential  that  in  com- 
munities thoroughly  incorporated  into  one  nation,  the 
inhabitants  of  every  geographical  district,  or  territorial 
subdivision,  should  have  their  proportional  share  in  the 
National  Government ;  whUst,  among  independent  sov- 
ereign States,  bound  together  by  a  simple  league,  the 
several  parties,  however  unequal  in  respect  to  territory 
and  population,  should  have  an  equal  share  in  the 
Federal  Councils.  It  was,  therefore,  reasonable  and 
proper,  that  in  a  Republic  partaking  of  both  the  Na- 
tional and  Federal  characters,  the  Government  should 
be  founded  on  a  union  of  both  those  principles  of 
representation.  Hence,  in  the  constitution  of  the  Leg- 
islative Power,  the  House  of  Representatives  was  con- 
structed on  the  principle  of  proportional,  and  the  Senate 
on  that  of  equal  representation  ;  and  although  this 
equality  in  the  latter  was  evidently  the  result  of  a 
compromise  between  the  larger  and  smaller  States, 
yet,  as  it  afforded  a  convenient  and  effectual  mode  of 
applying  the  rule  of  combined  representation  to  that 
coordinate  branch  of  the  Legislature,  and  necessarily 
induced  a  separation  of  the  two  bodies  of  which  Con- 
gress is  composed,  its  adoption  was  the  more  strongly 
recommended. 

1.  The  House  of  Representatives  was  accordingly 

founded  on  the  principle  oi proportional  lepiesentaiion — 

yet  not  purely  and  abstractedly  so ;  but  with  as  much 

conformity  to  that  principle  as  was  practicable.     It  is 

5* 


64  LECTURES   ON 

composed  of  representatives  of  the  people  of  the  several 
States,  not  of  the  people  of  the  United  States  collec- 
tively and  at  large ;  and,  in  this  respect,  it  partakes  of 
the  federative  quality.  Neither  are  the  qualifications  of 
its  electors  uniform,  inasmuch  as  great  variety  of  opin- 
ion and  practice  exists  concerning  them  in  the  several 
States.  The  Representatives  in  Congress  are  chosen 
every  second  year  by  the  people  of  the  several  States, 
who  are  qualified  to  vote  for  the  most  numerous  branch 
of  their  State  Legislature.  No  person  can  be  a  repre- 
sentative until  he  has  attained  the  age  of  twenty-five 
years,  and  has  been  seven  years  a  citizen  of  the  United 
States ;  nor  unless  he  is  an  inhabitant  of  the  State  for 
which  he  is  chosen.  When  vacancies  happen  firom 
death  or  resignation  in  the  representation  of  any  State, 
its  Executive  authority  is  directed  to  issue  writs  of  elec- 
tion to  fill  them,  either  at  a  general  or  special  election.^ 
The  general  qualifications  of  the  electors  of  the  most 
numerous  branch  of  the  State  Legislatures  are,  that 
they  be  past  the  age  of  twenty-one  years,  free  resident 
citizens  of  the  State  in  which  they  vote,  and  have  paid 
taxes  thereto.  In  some  of  the  States,  they  are  required 
to  possess  property  of  a  certain  description  or  amount, 
and  in  others,  to  be  white  as  well  as  free  citizens.  These 
different  qualifications  are,  in  some  instances,  difierently 
combined,  or  restricted,  and  modified  ;  and,  in  most 
others,  are  so  large  as  to  include  all  persons  who  are  of 
competent  discretion,  and  interested  in  the  welfare  of 
the  Government ;  liable  to  perform  any  of  its  duties,  or 
bear  any  of  its  burdens ;  so  that,  upon  the  whole,  the 
House  of  Representatives  may  be  said  very  fairly  to 
represent  the  aggregate  body  of  the  American  People. 

1  Const  U.  S.,  Art  I.  Sect  u.  4. 


CONSTITUTIONAL  JURISPRUDENCE.  55 

Several  of  the  State  Constitutions  have  prescribed 
the  same,  if  not  higher,  qualifications  in  the  elected 
than  in  the  electors,  and  some  of  them  require  a  re- 
ligious test ;  but  the  Constitution  of  the  United  States 
requires  no  evidence  of  property  in  the  Representative, 
nor  any  declaration  of  his  religious  belief.  He  is  merely 
required  to  be  a  citizen  of  competent  age,  and  free  from 
undue  bias  or  dependence,  by  not  holding  any  office  of 
trust  or  profit  under  the  United  States.  The  term  for 
which  he  is  elected  to  serve  is  not  so  short  as  to  prevent 
his  obtaining  a  comprehensive  acquaintance  with  his 
duties,  nor  so  long  as  to  tempt  him  to  forget  his  de- 
pendence on  the  approbation  of  his  constituents.  For, 
as  on  the  one  hand,  frequent  elections  tend  to  diminish 
the  importance  of  the  office,  and  to  render  the  electors 
indifferent  to  the  exercise  of  their  right  ;  so,  on  the 
other,  long  intervals  between  the  elections  are  apt  to 
produce  too  much  excitement,  and,  consequently,  to 
render  the  periods  of  their  return,  a  season  of  more 
severe  competition  and  conffict,  and  of  more  serious 
disturbance  of  the  public  tranquillity.  The  Constitu- 
tion has  not,  certainly,  deviated  to  the  latter  extreme  in 
the  establishment  of  biennial  elections.  Considering 
not  only  the  present  extent  and  situation  of  the  country, 
but  also  the  probability  of  its  future  enlargement,  the 
medium  adopted  seems  to  combine  as  many  advan- 
tages, and  avoid  as  many  difficulties,  as  any  other  term 
which  might  have  been  chosen. 

The  Representatives  are  directed  to  be  apportioned 
among  the  States  according  to  numbers ;  which  are 
determined  in  each  State  by  adding  to  the  whole  num- 
ber of  free  persons,  exclusive  of  Indians,  not  taxed, 
three  fifths  of  all  other  persons.     This  rule  of  appor- 


66  LECTURES   ON 

tionment  is  obnoxious  to  the  objection  that  three  fifths  of 
the  slaves  in  those  States  where  slavery  exists  are  com- 
puted in  settling  the  representation.  But  this  provision, 
which  thus  enables  those  States  to  swell  their  represen- 
tative population,  and  thereby  increase  their  political 
weight  and  influence,  was  the  result  of  a  compromise, 
without  which,  the  Federal  Union,  if  formed  at  all, 
would  not  have  comprehended  the  States  in  question ; 
and  the  same  rule  that  apportions  the  Representatives 
in  Congress,  extends  to  the  apportionment  of  direct 
taxes ;  so  that  whUe  their  slaves  give  to  those  States  an 
increased  representation,  they  contribute  also  to  increase 
the  amount  of  their  taxes,  when  the  direct  mode  of 
levying  them  is  resorted  to.  The  mischief,  however,  is, 
that  the  undue  preponderance  thus  obtained  in  the  pub- 
lic councils  has  hitherto  prevented,  and  may  in  future 
always  prevent,  a  recourse  to  that  species  of  taxation, 
except  during  a  part  of  those  brief  periods  in  which  the 
country  has  since  been,  or  may  hereafter  be,  engaged  in 
foreign  war. 

The  Constitution  directed  an  actual  enumeration 
of  the  people  to  be  made  within  three  years  after  the 
first  meeting  of  Congress,  and  provides  that  one  be 
taken,  in  virtue  of  Acts  passed  for  that  purpose,  within 
every  subsequent  period  of  ten  years.^  The  number  of 
Representatives  cannot  exceed  one  for  every  thirty 
thousand ;  but  each  State  is  entitled  to  at  least  one 
Representative.  Upon  the  return  of  the  first  Census, 
it  was  conceived  by  Congress  that,  without  invading 
the  Constitution,  the  principle  of  apportionment  might, 
with  advantage,  be  so  modified  as  to  prevent  the  loss  in 

»  Const.  U.  S.,  Art.  I.  Sect.  ii.  3. 


CONSTITUTIONAL  JURISPRUDENCE.  67 

the  number  of  Representatives  arising  from  the  frac- 
tional parts  produced  by  the  application  of  the  ratio  of 
representation  to  the  representative  population  of  the 
respective  States.  The  aggregate  number  of  the  repre- 
sentative population  of  the  United  States,  as  ascertained 
by  that  census,  was  accordingly  divided  by  the  ratio 
adopted  in  the  bill,  which  was  thirty  thousand,  and  the 
operation  was  found  to  produce  the  quotient  of  one 
hundred  and  twenty ;  whereupon  that  number  of  Rep- 
resentatives was  apportioned  among  the  several  States, 
until  as  many  Representatives  as  it  would  give  were 
assigned  to  each  State,  and  then  the  residuary  or  sur- 
plus number  was  distributed  among  the  States  having 
the  highest  fractional  numbers,  until  the  whole  number 
of  one  hundred  and  twenty  was  exhausted.  After 
much  debate,  and  strong  opposition,  this  bill  passed 
both  Houses  of  Congress  ;  but  the  correct  and  in- 
dependent mind  of  President  Washington  could  not 
reconcile  its  provisions  with  the  Constitution,  and  he 
returned  the  bill  to  the  House  of  Representatives,  in 
which  it  had  originated,  with  this  objection,  "  that  the 
Constitution  had  provided  that  the  number  of  Rep- 
resentatives should  not  exceed  one  for  every  thirty 
thousand,  which  ratio  was  to  be  applied  to  the  respec- 
tive numbers  of  the  States ;  ^  whereas  the  bill  allotted 
to  several  of  the  States  more  than  one  Representative 
for  every  thirty  thousand  of  its  population."  As  there 
was  not  a  Constitutional  majority  to  pass  the  bill, 
notwithstanding  the  objections  of  the  President,  it 
was  consequently  rejected.  A  new  one  was  imme- 
diately brought  in  and  passed,  adopting  the  ratio  of 
thirty-three  thousand,  applying  it  to  the  numbers  of  the 

»  Const.  U.  S.,  Art.  I.  Sect.  n.  3. 


58  uonmis  ox 

Static  respectiv^y,  and  withont  providing  for  the  rep- 
K^i^iMitaitioas  of  the  fmetioual  remainders.  This  coarse 
wa»  punmed  on  evt^ry  subt^n^nent  «.>€H.iision^  nntil  the  last ; 
ahhoiiigh>  on  the  return  of  the  li&,h  eensQS>  a  pn>poisal 
Hw  the  repressentation  of  the  fractional  parts,  similar  in 
principle  to  ti»e  fwarmer  one,  was  adopted  in  the  Senate, 
boft  rejected  by  the  House.  In  this  case,  althongh  the 
rmth  adopted  e:ceeeded  thirty  thousand,  and  was  fixed 
hj  an  amendment  in  the  Senate  at  forty-seven  thon> 
sand,  yet  this  'm^h  was  applied,  as  before,  to  the  aggre- 
gate number  of  the  representative  population  of  the 
Umted  States  in  ord«Y  to  obtain  the  number  of  Repre> 
smtatives,  who  were  then,  in  like  manner,  apportioned 
among  the  several  States,  and  the  residuary  members 
distribated  amotng  tho^e  having  the  highest  fractions 
flaceee^ng  twenty^ve  thousand.  In  thb  last  respect, 
tb«t«fe«e»  the  aiuendment  in  question  was  liable  to  the 
tSbjftd&otifd  assigttiug  a  Representative  to  a  less  numbi» 
than  thirty  thousand. 

The  pctueiple  upon  which  this  objection  was  founded 
seems,  however,  to  have  been  di;»tegarded  in  the  last 
Ad  of  Coiigtess  on  the  subject ;  the  provisions  of  whidi, 
to  a  certain  extent,  assume  a  permiment  character.  It 
provides  that  the  House  of  Rejwtesentatives  shall  befe>- 
after  eoiusist  of  two  hundred  and  thirty-three  members, 
to  be  apportioned  among  the  several  States  by  the 
Secretary  of  the  Interior,  who  is  (Greeted  upon  the 
return  of  the  census,  to  ascertain  the  nnmbta-  of  the 
representative  population  of  the  United  States,  and 
dmde  it  by  two  hundred  aiwi  thirty-three,  the  products 
of  vlaeh  divbion,  rejecting  ficactions,  is  declared  to  be 
Ite  mIms.  or  rule  of  ap^Hxtiooment  of  Reptesentatives 
the  several  States.    He  k  titi^n  to  asciartain  the 


CQVfnZUTIOVAL  JVBSBPKODEUCE,  59 

repre^ntative  population  of  each  State,  and  divide  it 
by  the  ratio  already  determined  by  him ;  the  product  of 
which  la«t  division  gives  the  number  of  Representatives 
apportioned  to  such  State.  The  lo»»  in  Hie  nnmbor 
of  members  caused  by  the  fractionH  remaining  in  the 
aeveni  States  is  compensated  by  aisslgning  an  additional 
member  to  so  many  of  the  States  having  the  largest 
fractions  as  may  be  necessary  to  make  the  whole  num- 
ber of  Representatives  two  hundred  and  thui;y-three. 
If,  after  the  apportionment,  a  new  State  be  admitted 
into  the  Union,  the  Representative  assigned  to  it  Is  to 
be  added  to  the  above  number;  but  tbb  excess  is  to 
ocmtinue  only  until  the  next  succeeding  apportionment.' 

It  will  be  observed  that  this  elaborate  plan  is  open  to 
the  objection  interposed  by  President  Washington  to 
the  first  apportionment  billf  in  which  he  was  sustained 
by  Congress,  inasmuch  as,  in  assigning  the  deficient 
members  to  the  States  having  the  highest  fi'actlons,  it 
does  not*  provide  that  each  fraction  shall  exceed  thirty 
thousand — the  number  required  by  the  Constitution  to 
entitle  a  State  to  more  than  one  Representative. 

To  guard  against  a  refractory  disposition,  should  it 
ever  appear  in  any  of  the  States,  in  the  neglect  or 
refusal  to  exerdse  the  right  vested  in  them  by  the  Con- 
stitution^  of  prescribing  the  time,  places,  and  manner  of 
holding  elections  of  Representatives,  Congress  is  em« 
powered,  at  any  time  to  make  or  alter  such  regulations.^ 

*  The  tahteqaent  admission  of  California  into  the  Union,  with  two 
BeprewDtatirec,  makes  the  wltole  number  of  the  present  House  of 
Representative*,  two  Irandred  and  thirty-five.  The  ra/io  of  represeo- 
tation  for  the  next  Hoose,  is  one  Representative  for  every  93,420  of 
representative  population. 

3  Const.  U.  S.,  Art.  L  Sect  xv,  1. 


60  LECTURES   ON 

This  power  was,  for  the  first  time,  exercised  by  the 
twenty-fifth  Congress,  by  an  Act  directing  the  State 
Legislatures  to  divide  their  respective  States  into  as 
many  districts  for  the  election  of  their  Representatives 
in  Congress,  as  there  are  Representativas  to  be  elected 
in  each;  and  that  each  district  shall  consist  of  con- 
tiguous territory,  and  contain  an  equal  number  of  per- 
sons, as  nearly  as  may  be,  without  dividing  counties,  or 
other  similar  subdivisions.  Several  of  those  States  in 
which  the  principles  of  anti-federalism  and  nullification 
prevail,  demurred  in  carrying  this  regulation  into  effect, 
and  at  last  yielded  only  a  reluctant  consent. 

2.  The  Senate  of  the  United  States  consists  of  two 
Senators  from  each  State,  chosen  by  its  Legislature,  for 
six  years,  and  each  Senator  has  one  vote.^  If  a  vacancy 
happen  during  a  recess  of  the  Legislature,  the  Executive 
power  of  the  State  may  make  temporary  appointments 
until  the  next  meeting  of  the  Legislature,  when  the 
vacancy  must  be  filled  in  the  ordinary  manner.  Each 
State,  therefore,  has  its  equal  voice  and  weight  in  the 
Senate  of  the  Union,  without  regard  to  disparity  of 
population,  wealth,  or  territory.  The  number  of  two 
Senators  would,  however,  have  been  found  inconvenient 
if  the  votes  in  the  Senate  had  been  taken,  as  in  the 
Congress  of  the  Confederation,  by  States.  There,  if  the 
delegates  of  a  State  were  equally  divided,  its  vote  was 
lost ;  and  this,  of  course,  rendered  an  uneven  number 
preferable.  But  from  the  numerical  vote  taken  per 
capita  upon  all  questions  in  the  Senate,  a  division  of 
opinion  between  the  Senators  of  a  particular  State  has 
no  such  influence  on  the  general  result. 

'  Const.  U.  S.,  Art  I.  Sect.  in.  1. 


CONSTITUTIONAL  JURISPRUDENCE.  61 

The  election  of  Senators  in  Congress  by  the  State 
Legislatures  has  the  double  advantage  of  favoring  a 
select  appointment,  and  of  giving  to  the  State  Govern- 
ments such  an  essential  agency  in  the  organization  of 
the  General  Government  as  recognizes  and  preserves 
them,  in  their  sovereign  character,  living  and  active 
members  of  the  federal  body.  Whether  the  choice  of 
Senators  should  be  made  by  the  joint  or  concurrent 
vote  of  the  two  branches  of  the  State  Legislatures,  the 
Constitution  does  not  direct.  Hence,  difficulties  have 
arisen  as  to  its  meaning.  The  difference  between  the 
two  modes  of  election  is,  that,  on  a  joint  vote,  the 
members  of  both  branches  of  the  Legislature  assemble 
together  for  the  purpose,  and  vote  numerically  ;  while  a 
concurrent  vote  is  taken  by  each  House  separately,  and 
the  decision  of  one  is  subject  to  the  approval  of  the 
other.  The  difficulties  alluded  to,  have  arisen  in  cases 
of  their  disagreement ;  but  as  the  Legislatures  may  pre- 
scribe the  manner,  as  well  as  the  times  and  places,  of 
choosing  Senators,  it  has  been  considered  in  several  of 
the  States,  that  the  Legislature  may  direct  them  to  be 
chosen  by  the  joint  vote  or  ballot  by  both  Houses 
assembled  together  for  the  purpose,  in  cases  of  non- 
concurrence;  and  then,  of  course,  the  weight  of  the 
least  numerous  branch  is  dissipated  and  overcome  by 
the  heavier  vote  of  the  other.  This  construction  has 
been  found  the  most  convenient,  and  has  been  too  long 
settled  by  the  repeated  recognitions  of  Senators  so 
elected  to  be  now  disturbed ;  but  were  the  question  an 
open  one,  I  think  it  might  be  maintained  that  where 
the  Constitution  directed  the  Federal  Senators  to  be 
chosen  in  each  State  "  by  the  Legislature  thereof,"  it 
meant  the  Legislature  in  the  true  technical  sense  of  the 
6 


62  LECTURES   ON 

term  —  consisting  of  two  branches,  acting  in  their  sep- 
arate organized  capacities,  with  the  ordinary  constitu- 
tional negative  on  each  other's  proceedings,  and  not  the 
members  of  the  two  Houses  per  capita. 

The  smaller  number  and  longer  duration  of  the  Senate 
were  intended  to  render  it  a  safeguard  against  those 
paroxysms  of  heat  and  passion  which  occasionally  pre- 
vail in  more  popular  assemblies.  The  characteristic 
qualities  of  the  Senate,  in  the  intendment  of  the 
Constitution,  are  wisdom  and  experience.  The  legal 
presumption,  therefore,  is  that  it  will  entertain  more 
enlarged  views  of  public  policy,  feel  a  higher  and  juster 
sense  of  national  character,  and  a  greater  regard  for 
permanence  and  stability  in  the  administration  of  the 
government,  than  a  more  numerous  and  changeable 
body.  These  qualities,  indeed,  may  be  found  in  the 
other  branch  of  the  Legislature,  but  its  constitutional 
structure  is  not  so  well  calculated  to  produce  them; 
for,  as  the  House  of  Representatives  comes  more 
immediately  from  the  people,  and  its  members  hold 
their  seats  for  a  much  shorter  term,  they  are  presumed 
to  partake,  with  a  quicker  sensibility,  of  the  prevailing 
temper  and  irritable  disposition  of  the  times,  and  to  be 
in  much  more  danger  of  adopting  measures  with  pre- 
cipitancy and  changing  them  with  levity,  than  the  more 
sage  and  experienced  members  of  the  more  select  and 
less  numerous  body.  In  order,  therefore,  to  counteract 
these  propensities,  to  maintain  a  greater  confidence  in 
the  Government,  and  to  insure  its  safety  at  home  and 
its  character  abroad,  it  was  necessary  that  another  body 
of  men,  coming  likewise,  though  mediately,  from  the 
people,  and  equally  responsible  to  them  for  their  con- 
duct, but  resting  on  a  more   permanent  basis,   and 


COXSTITUTIONAL  JURISPRUDENCE.  68  " 

constituted  with  stronger  tendency  to  moderation  in 
debate,  and  tenacity  of  purpose,  should  be  placed  as  a 
check  upon  the  natural  intemperance  of  the  younger 
and  more  popular  branch. 

The  Senate,  at  its  first  organization,  was  divided,  in 
the  mode  pointed  out  in  the  Constitution,  into  three 
classes.  The  rotation  intended  to  be  produced  by  that 
division  was  originally  determined  by  lot,  and  the  seats 
of  one  of  the  classes  become  vacant  at  the  expiration 
of  every  second  year ;  so  that  one  third  of  the  Senate 
is  regularly  chosen  every  two  years.^  This  provision 
was  borrowed  from  some  of  the  State  Constitutions,  of 
which  that  of  Virginia  gave  the  first  example ;  and  it 
is  admirably  well  calculated,  on  the  one  hand,  to  infuse 
into  ihe  Senate  renewed  confidence  and  vigor,  and  on 
the  other,  to  retain  a  large  portion  of  experienced 
members,  duly  initiated  into  the  general  principles  of 
national  policy,  and  the  forms  and  course  of  legislative 
business. 

II.  The  House  of  Eepresentatives  possesses  the  sole 
power  of  impeachment,  or  of  presenting  accusations 
against  public  oiEficers  of  the  United  States  for  malver- 
sation in  their  offices.^  It  has  also  the  exclusive  right  of 
originating  all  bills  for  raising  revenue ;  ^  and  this  is  the 
.  only  privilege  which  that  House  possesses,  that  is  not 
equally  shared  with  the  other ;  and  even  these  revenue 
bills  are  amendable  by  the  Senate  at  its  discretion ;  so 
that  in  aU  business  pertaining  to  legislation,  each  House 
is  an  entire  and  perfect  check  upon  the  other.    The  pro- 


'  Const.  U.  S.,  Art.  I.  Sect.  iii.  2. 

2  Ibid.,  Art.  I.  Sect.  ii.  5. 

3  Ibid.,  Art.  I.  Sect.  vii.  1. 


64  LECTURES   ON 

ceedings  of  the  House  of  Representatives  are  conducted 
with  open  doors,  except  on  very  special  occasions. 
This  publicity  affords  the  people  early  and  authentic 
information  of  the  progress,  reason,  and  policy  of 
measures  pending  before  Congress,  and  is,  moreover,  a 
powerful  stimulus  to  industry  and  research,  and  to  the 
cultivation  of  talent  and  eloquence  in  debate.  These 
advantages,  indeed,  are  doubtless  acquired  at  the  ex- 
pense of  much  useless  discussion,  and  much  valuable 
time ;  yet  the  balance  of  utility  is  greatly  in  favor  of 
open  deliberation,  and  it  is  very  certain,  from  the  oppo- 
sition made  to  the  experiment  of  the  first  Senate  to  sit 
with  closed  doors,  that  such  a  practice,  by  any  legisla- 
tive body  in  this  country,  would  not  be  endured. 

The  Senate  has  the  sole  power  of  trying  impeach- 
ments.' The  first  recognition  in  the  Federal  Constitu- 
tion, of  a  court  for  that  purpose,  is  in  the  Article  we 
are  now  examining,  which  declares  that  "  the  House  of 
Representatives  shall  have  the  sole  power  of  impeach- 
ment," and  that  "  the  Senate  shall  have  the  sole  power 
to  try  all  impeachments."  The  term  is  thus  introduced 
into  the  Constitution,  as  of  a  known  and  definite  signi- 
fication ;  and  a  well-constituted  court  for  the  trial  of 
impeachments  was  considered  by  the  authors  of  "  The 
Federalist  "2  as  an  object  not  more  to  be  desired  than 
difficult  to  be  obtained,  in  a  government  wholly  elective. 
The  delicacy  and  magnitude  of  a  trust  which  so  deeply 
concerns  the  political  reputation  and  existence  of  every 
one  engaged  in  the  administration  of  public  affairs, 
may  be  readily  perceived ;  as  wiU,  also,  the  difficulty  of 

1  Const.  U.  S.,  Art.  I.  Sect.  iii.  6. 

2  No.  65,  by  Mr.  Hamilton. 


CONSTITUTIONAL  JUKISPRUDENCE.  65 

placing  it  rightly  in  a  government  in  which  the  most 
conspicuous  persons  are  the  leaders,  and  too  often  the 
instruments  of  party,  and  can,  therefore,  hardly  be  ex- 
pected to  possess  the  neutrality  requisite  in  regard  to 
those  whose  conduct  may  be  submitted  to  their  scrutiny. 
It  would  be  improper,  too,  to  commit  the  cognizance  of 
those  offences  which  are  the  objects  of  impeachments 
to  the  ordinary  courts  of  justice,  as  the  complexities 
and  variety  of  political  delinquencies  are  too  numerous 
and  artful  to  be  anticipated  by  positive  enactment,  and 
sometimes  too  subtle  and  mysterious  to  be  fully  de- 
tected and  exposed  in  the  limited  period  of  ordinary 
investigation.  A  peculiar  tribunal  seems,  therefore, 
useful  and  necessary, —  an  institution  of  a  liberal  and 
comprehensive  character ;  confined  as  little  as  possible 
to  strict  forms  ;  enabled  to  continue  its  sessions  as  long 
as  the  nature  of  the  case  before  it  may  require ;  quali- 
fied to  view  the  charge  in  all  its  bearings  and  depend- 
ences, and  to  appreciate,  on  sound  principles  of  public 
policy,  the  defence  of  the  accused. 

To  compose  this  Court  of  persons  wholly  distinct 
from  the  other  branches  of  the  Government,  and  forming 
a  permanent  body  for  the  single  purpose  of  exercising 
this  jurisdiction,  would  have  been  as  inconvenient  as 
to  appoint  and  collect  temporary  judges  whenever  an 
impeachment  may  be  determined  upon.  The  Conven- 
tion that  formed  the  Constitution  thought  it  most  fit 
and  safe  to  make  the  Senate  the  depository  of  this 
important  trust ;  and  upon  a  review  of  all  the  depart- 
ments of  the  Government,  no  other  could  have  been 
found  so  suitable  for  such  a  jurisdiction.  The  model 
from  which  the  institution  was  borrowed,  was  the  British 
House  of  Peers,  which  had  been  previously  followed  in 
6* 


66  LECTURES   ON 

some  of  the  State  Constitutions.  Besides  the  reasons 
already  suggested  against  intrusting  its  exercise  to  the 
ordinary  courts,  there  remains  this  further  consideration, 
that  the  punishment  consequent  upon  conviction,  is  not 
the  only  one  to  which  the  offence  is  liable.  The  judg- 
ment in  cases  of  impeachment,  extends  no  further  than 
removal  from  office,  and  disqualification  to  hold  in 
future  any  office  of  trust  or  profit  under  the  United 
States.  But  the  party  convicted  is,  nevertheless,  sub- 
ject to  prosecution,  according  to  the  usual  course  of 
administering  the  law ;  and  it  would  obviously  be  im- 
proper, if  not  in  a  high  degree  dangerous,  that  the 
same  tribunal  that  had  already  disposed  of  the  fame 
and  character  of  the  accused,  and  of  his  most  valuable 
political  rights  as  a  citizen,  should,  in  another  trial  for 
the  same  offence,  be  also  the  arbiter  of  his  life,  liberty, 
or  property. 

The  only  persons  liable  to  impeachment  with  us,  are 
those,  as  we  have  seen,  who  are,  or  have  been,  in  public 
office.  But  a  construction  has  been  given  to  the  Con- 
stitution, by  which  a  member  of  the  Senate  was  held 
^  not  to  be  liable  to  impeachment.  The  deliberations  of 
the  Court  being  had  in  secret,  we  can  only  infer  from 
the  arguments  urged  at  the  bar,  that  the  term  "  officers  " 
used  in  the  Constitution  was  held  not  to  include  Sen- 
ators ;  and  on  the  same  principle  members  of  the  House 
of  Representatives  would  also  be  exempt  from  liability 
to  this  jurisdiction.  The  grounds  of  the  distinction  may 
probably  have  been  that  the  power  of  impeachment 
was  intended  merely  as  a  check  given  to  the  Legislative 
upon  the  other  tvvo  departments ;  and  that,  as  each 
House  of  Congress  was  the  judge  of  its  own  members, 
all  the  ends  of  justice  might  be  attained  by  the  expul- 
sion of  a  delinquent  member. 


CONSTITUTIONAL  JURISPRUDENCE.  67 

When  sitting  as  a  Court  for  the  trial  of  impeach- 
ments, the  Senators  are  put  under  oath  or  affirmation, 
faithfully  and  impartially  to  discharge  their  judicial 
functions.  No  person,  can  be  convicted  but  with  the 
concurrence  of  two  thirds  of  the  members  of  the  Court ; 
the  Vice-President  of  the  United  States,  as  President 
of  the  Senate,  being  a  "  member  of  the  Court,"  with  a 
constant,  instead  of  a  contingent  vote,  presides  in  it, 
except  when  the  President  of  the  United  States  is  tried, 
on  which  occasion  the  Chief-Justice  presides. 

The  Senate,  moreover,  in  its  exclusive  connection  with 
the  Executive  department,  has  a  negative  upon  the  nomi- 
nation by  the  President  of  aU  officers  whose  appointment 
is  not  otherwise  provided  for  in  the  Constitution  ;  and 
the  advice  and  consent  of  two  thirds  of  the  Senators 
present  are  requisite  to  all  treaties,  which  are  submitted 
to  the  consideration  of  the  Senate  alone.  The  Senate, 
however,  is  not  consulted  in  the  first  instance ;  but 
when  a  treaty  is  agreed  upon  by  the  agents  employed 
in  its  negotiation,  the  President,  unless  he  disapprove 
it,  submits  it  to  the  Senate,  and  renders  to  them,  from 
time  to  time,  such  information  relative  to  it  as  they 
may  desire,  unless  the  public  good  requires  it  to  be 
withheld.  The  Senate  may  wholly  reject  a  treaty,  or 
they  may  ratify  it  in  part,  or  recommend  additional  or 
explanatory  articles  which,  if  the  President  approve, 
become  the  subject  of  further  negotiation  with  the 
foreign  power.  When  the  whole  receives  the  sanction 
of  the  Senate,  the  ratifications  are  exchanged,  and  the 
treaty  becomes  obligatory  upon  both  nations.  Although 
not  required  by  the  Constitution,  yet,  from  the  fitness 
and  exigency  of  the  case,  the  proceedings  of  the  Senate 
on  these  occasions  are  always  with  closed  doors ;  and 


68  LECTURES   ON 

the  contents  of  the  treaty,  and  the  information  con- 
nected with  it  are,  from  motives  of  delicacy  and  good 
policy,  kept  secret  until  the  publication  or  other  termi- 
nation of  the  negotiations  in  regard  to  it,  render  such 
reserve  no  longer  necessary. 

From  the  superior  weight  and  delicacy  of  the  trusts 
thus  confided  to  the  Senate,  the  Constitution  requires 
that  a  Senator  be  thirty  years  of  age,  nine  years  a  citi- 
zen, and,  at  the  time  of  his  election,  an  inhabitant  of 
the  State  for  which  he  is  chosen. 

Although  no  express  power  is  given  by  the  Constitu- 
tion to  either  House  of  Congress  to  provide  for  con- 
tempt, except  when  committed  by  one  of  its  own 
members,  yet  such  power  is  necessarily  implied  with 
respect  to  others  who  commit  contempts  in  its  presence ; 
and  extends  to  the  imprisonment  of  the  guilty  party. 
Without  this  power,  either  House  would  be  exposed  to 
any  indignity  and  interruption  that  rudeness  or  caprice, 
or  even  conspiracy,  might  perpetrate  or  meditate  against 
it.  But  the  imprisonment  must,  at  all  events,  terminate 
with  the  adjournment  of  Congress,  or  the  periodical 
dissolution  of  the  House  of  Representatives  inflicting 
it. 

in.  Each  House  is  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members ;  and  a 
majority  of  each  constitutes  a  quorum  for  the  transac- 
tion of  business ;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  pen- 
alties, as  it  may  provide.  Each  determines  the  rules 
of  its  proceedings,  punishes  its  members  for  disorderly 
behaviour,  and,  with  the  concurrence  of  two  thirds,  may 
expel  a  member.     It  is  obligatory  upon  each  to  keep  a 


CONSTITUTIONAL  JURISPRUDENCE.  69 

journal  of  its  proceedings,  and,  from  time  to  time,  to 
publish  the  same,  excepting  such  parts  as  may  in  its 
judgment  require  secrecy;  and  the  yeas  and  nays  of  its 
members  must,  at  the  desire  of  one  fifth  of  the  mem- 
bers present,  be  taken  and  entered  on  its  journal.^  The 
members  of  each  House  receive  a  compensation  for 
their  services,  provided  by  law,  and  paid  out  of  the 
treasury  of  the  United  States.^  In  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  they  are  privi- 
leged from  arrest  during  their  attendance,  and  going 
to  and  returning  from  the  sessions  of  their  respective 
Houses  ;  nor  can  they  be  questioned  in  any  other  place, 
for  any  speech  or  debate  in  either.^ 

The  rules  of  proceeding  in  each  House  are  substan- 
tially the  same ;  and  are  such  as  are  essential  to  the 
transaction  of  business  with  order  and  safety.  The 
House  of  Kepresentatives  chooses  its  Speaker,^  or  pre- 
siding officer,  from  among  its  own  members ;  and  it 
also  chooses  its  other  officers.  But  the  Vice-President 
of  the  United  States  is,  ex  officio^  President  of  the 
Senate,  having,  however,  no  vote  therein,  unless  the 
Senators  be  equally  divided.  The  Senate  chooses  its 
other  officers;  and  a  President  pro  tempore^  from  its 
own  body,  in  the   absence   of  the  Vice-President,  or 

>  Const.  U.  S.,  Art.  I.  Sect,  v.  1,  3. 

2  Ibid.,  Art  I.  Sect.  vi.  1. 

3  Ibid.,  Art.  I.  Sect.  vi.  1. 

4  The  title  is  taken  from  that  of  the  presiding  member  of  the 
British  House  of  Commons,  and  derived  from  his  addressing  or 
speaking  to  the  Crown  on  behalf  of  its  "  faithful  Commons,"  when 
soliciting  its  confirmation  in  their  privileges,  its  assent  to  bills,  its 
acceptance  of  grants,  or  upon  presenting  addresses  upon  any  other 
subject  or  occasion. 


70  LECTURES   ON 

when  he  executes  the  office  of  President  of  the  United 
States. 

Bills,  or  the  original  drafts  or  projects  of  laws,  are 
introduced  into  both  Houses  respectively,  either  upon 
the  order  of  the  House  on  the  Report  of  a  standing  or 
of  a  select  committee,  or  upon  leave  granted  to  an 
individual  member  on  motion,  after  due  notice  of  his 
intention  to  move  the  House  to  grant  it.  Standing 
Committees  are  appointed  for  the  session  upon  all  the 
usual  subjects  of  ordinary  legislation,  and  upon  the 
general  matters  incident  to  the  proceedings  of  each 
House  respectively.  Select  Committees  are  appointed 
from  time  to  time  upon  special  subjects  as  they  arise  ; 
and  their  powers  cease  upon  the  performance  of  the 
temporary  duties  assigned  to  them,  or  upon  their  dis-' 
charge  from  the  consideration  of  the  subject  referred  to 
them.  Both  standing  and  select  committees  are  ap- 
pointed, in  the  House  of  Representatives,  on  the  nomi- 
nation of  the  Speaker,  and  in  the  Senate,  generally  by 
ballot,  but  sometimes,  and  in  some  special  cases,  on  the 
nomination  of  the  President  of  the  Senate. 

Bills  are  introduced  by  standing  committees,  upon 
the  order  of  the  House,  upon  subjects  embraced  by  the 
general  objects  of  their  appointment,  either  accompanied 
by  a  report  upon  those  general  objects,  or  upon  a  par- 
ticular object  relative  thereto,  or  specially  referred  to 
them ;  or  upon  the  mere  motion  of  the  Chairman,  or 
any  other  member  of  the  Committee  under  its  direc- 
tion, without  previous  notice.  Bills  are,  in  like  manner, 
introduced  by  Select  Committees,  upon  the  order  of  the 
House  on  a  report  relative  to  the  special  matter  re- 
ferred to  them,  or  upon  motion,  without  previous  notice, 
for  leave  to  report  by  bill. 


CONSTITUTIONAL  JURISPKUDENCE.  71 

Every  bill  must  receive  three  readings  before  it  can 
be  passed  by  either  House  ;  and  these  several  readings 
must  be  on  different  days,  unless  upon  a  special  order 
made  by  the  unanimous  consent  of  the  House,  to  the 
contrary ;  which  is  usually  given  or  tacitly  assumed  so 
far  as  to  permit  the  first  and  second  reading  on  the 
same  day.  No  bill  can  be  committed  or  amended,  until 
it  has  been  read  twice ;  and  upon  its  second  reading,  it 
is  declared  to  be  ready  for  commitment  or  engrossment. 
If  committed,  it  is  either  to  a  standing  or  select  com- 
mittee, or  to  a  committee  of  the  whole  House;  or  if 
the  bill,  instead  of  being  committed,  be  ordered  to  be 
engrossed,  the  House  appoints  the  day  on  which  it  shall 
be  read  a  third  time.  If  a  bUl  be  committed  to  a  Com- 
mittee of  the  whole,  the  House  determines  on  what 
day  the  committee  shall  consider  it;  and  when  the 
House  resolves  itself  into  such  committee,  the  Speaker 
leaves  the  chair,  after  appointing  another  member  to 
preside  as  Chairman  of  the  Committee  ;  when  the 
Speaker  may  take  part  in  the  debates  of  the  committee 
as  an  ordinary  member.  In  the  Senate,  the  Committee 
of  the  whole  is  called  a  quasi  committee,  because  the 
President  of  the  Senate,  in  virtue  of  one  of  its  rules, 
acts  as  Chairman  of  the  Committee. 

Important  bills  are  usually  referred  to  a  Committee 
of  the  whole  House  ;  and  every  motion  or  proposition 
for  a  tax  or  charge  upon  the  people,  or  for  a  variation 
in  the  sum  or  quantum  of  a  tax  or  duty,  and  for  an 
appropriation  of  money,  is  required  first  to  be  discussed 
there.  The  object  of  referring  these,  or  any  other  mat- 
ters to  this  Committee,  is  to  allow  greater  latitude  and 
freedom  in  discussing  its  merits,  and  settling  the  details, 


72  LECTURES   ON 

than  is  generally  allowed  by  the  rules  of  either  House, 
when  the  proceeding  is  in  the  House  itself. 

After  commitment  and  report  to  the  House,  and  at 
any  time  before  its  passage,  a  bill  may  be  recommitted 
at  the  pleasure  of  the  House  ;  and  when  a  bill,  either 
upon  a  report  of  a  Committee,  or  after  full  discussion 
and  amendment  in  the  House,  stands  for  the  next  stage 
of  its  progress,  the  question  is,  whether  it  shall  be 
engrossed  for  its  third  reading  ?  and  this  is  the  proper 
time  for  those  who  are  opposed  to  the  principle  of  the 
bill  to  take  their  stand  against  it,  as  it  is  now  supposed 
to  be  as  perfect,  or  as  little  exceptionable,  as  it  can  be 
made.  When  a  bill  has  been  engrossed  for  a  third 
reading,  and  upon  being  read  a  third  time,  has  passed 
one  House,  it  is  transmitted  for  concurrence  to  the 
other,  where  it  is  subjected  to  similar  forms  of  exami- 
nation and  discussion.  If  it  be  altered  or  amended,  or 
agreed  to  without  amendment,  or  totally  rejected  in  the 
House  to  which  it  has  been  so  transmitted,  it  is,  in 
either  of  these  cases,  returned  to  the  House  in  which  it 
originated,  with  a  message  communicating  the  result 
If  amendments  made  in  one  House  are  not  agreed  to 
in  the  other,  a  message  to  that  effect  is  sent  to  the 
former,  which  may  either  recede  from,  or  insist  on  its 
amendments  ;  and  if  the  two  Houses  cannot  agree,  they 
appoint  committees  of  conference,  and  upon  receiving 
their  report,  either  House  may  recede  from  its  amend- 
ment, or  from  its  vote  of  concurrence,  or  accept  a 
compromise  suggested  by  the  Committee ;  or  it  may 
adhere  to  its  former  vote  of  disagreement,  in  which  case 
the  bUl  falls  to  the  ground. 

These  checks  and  formalities,  which  are  intended  to 


CONSTITUTIONAL  JUBISPRTJDENCE.  7S. 

guard  against  surprise  or  imposition,  were  originally 
borrowed,  although  much  contracted  and  simplified, 
from  the  proceedings  of  the  British  Parliament.  They 
prevailed  substantially  in  the  Colonial  Assemblies,  from 
which  they  were  immediately  adopted  by  the  State 
Legislatures,  and  from  them,  by  Congress ;  and  in  their 
application  and  interpretation,  recourse  is  frequently 
had  to  the  precedents  afforded  by  the  practice  and  de- 
cisions of  the  body  whence  they  are  derived. 

When  a  bill,  or  any  vote  or  resolution,  to  which  the 
concurrence  of  both  Houses  is  necessary,  (except  the 
adjournment  of  Congress,)  is  passed  by  both  branches 
of  that  National  Legislature,  it  is  required  by  the  Con- 
stitution ^  to  be  presented  to  the  President  of  the  United 
States  for  his  approval.  K  he  approve,  he  signs  it ; 
but  if  not,  he  must  return  it  with  his  objections  to  the 
House  in  which  it  originated,  which  must  enter  the 
objections  at  large  on  its  journal,  and  proceed  to  re- 
consider it.  K,  after  such  consideration,  two  thirds  of 
that  House  agree  to  pass  the  bill  or  resolution,  it  must 
be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  must  likewise  be  reconsidered ;  and 
if  approved  by  two  thirds  of  that  House  also,  it  be- 
comes a  law,  notwithstanding  the  objections  of  the 
President.  In  all  such  cases,  the  votes  of  both  Houses 
must  be  determined  by  yeas  and  nays,  or  openly  ascer- 
tained ;  and  the  names  of  the  persons  voting  for,  or 
against  the  bill  or  resolution  entered  on  the  journal. 
But  if  it  be  not  returned  by  the  President  within  ten 
days  (Sundays  excepted)  after  it  is  presented  to  him, 
it  becomes  a  law,  in  like  manner  as  if  he  had  signed 

1  Const.  U.  S.,  Art.  I.  Sect.  vii.  3. 
7 


74  LECTURES   ON 

it  —  unless  Congress,  by  adjournment,  prevents  its  re- 
turn. 

The  Constitution  directs  that  Congress  shall  assemble 
at  least  once  in  every  year,  and  that  such  meeting  shall 
be  held  on  the  first  Monday  in  December,  unless  another 
day  be  appointed  by  law.'  So  that  until  the  time  fixed 
either  by  the  Constitution  or  the  law,  the  action  of 
Congress  cannot  commence,  unless  the  President,  in  the 
exercise  of  his  constitutional  power,  shall,  on  extraor- 
dinary occasions,  convene  it  sooner.  Congress,  also,  by 
concurrent  resolution,  to  which,  in  this  case,  the  assent 
of  the  President  is  not,  as  we  have  seen,  necessary, 
fixes  the  time  of  its  own  adjournments.  But,  during  a 
session,  neither  House,  without  the  consent  of  the  other, 
can  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  it  is  sitting.^ 

Although  Congress  may  be  convened  by  the  Presi- 
dent, and  in  cases  of  disagreement  may  be  adjourned 
by  him  to  such  time  as  he  may  think  proper,^  yet  our 
National  Legislature  possesses  this  advantage  over 
others,  that  may  be  adjourned  or  dissolved  at  the 
pleasure  of  the  Executive  authority;  that,  if  in  the 
opinion  of  Congress  itself,  the  public  good  may  require 
it,  it  may  continue  uninterruptedly  in  session  until  the 
expiration  of  the  term  for  which  the  House  of  Repre- 
sentatives is  chosen  ;  and  it  may  appoint  as  early  a  day 
as  it  thinks  proper  for  the  meeting  of  the  next  Con- 
gress ;  and  as  the  term  for  which  the  House,  and  one 
third  of  the  Senate  are  elected  expires  at  the  end  of 


'  Const.  U.  S.,  Art.  I.  Sect.  iv.  2. 

2  Ibid.,  Art.  I.  Sect.  v.  4. 

3  Ibid.,  Art  II.  Sect.  in. 


CONSTITUTIONAL  JURISPRUDENCE.  75 

every  second  year,  Congress  must  of  necessity  adjourn 
at  the  expiration  of  that  period,  as  it  is,  in  fact,  dissolved 
by  the  joint  operation  of  the  Constitution  and  the  law, 
as  it  stands  at  present,  on  the  third  day  of  March  in 
every  alternate  year.  And  among  the  benefits  of  our 
written  Constitution,  it  may  be  accounted  as  one  of 
the  most  valuable,  that  no  Act  of  Congress  can  pro- 
long its  own  existence,  beyond  the  time  fixed  by  the 
fundamental  law. 


76  LECTURES   ON 


LECTURE    IV. 

OF  THE   EXECUTIVE  POWER. 

In  the  construction  of  a  Republican  Government, 
there  is  no  point  more  difficult  of  adjustment  than  the 
proper  constitution  of  the  Executive  Power.  The  ob- 
ject of  this  department  being  the  execution  of  the  laws, 
good  policy  requires  that  it  should  be  organized  in  the 
mode  best  calculated  to  effect  that  end  with  precision 
and  fidelity.  In  the  proceedings  of  the  other  branches 
of  the  Government,  deliberation  is  necessary.  Both  in 
making  and  expounding  the  laws,  caution  and  consul- 
tation are  implied  as  indispensable  duties.  '  But  when 
laws  are  duly  made  and  promulgated,  they  only  remain 
to  be  executed.  No  discretion  is  vested  in  the  Execu- 
tive officer  in  regard  to  their  wisdom  or  expediency. 
What  has  been  declared  under  the  forms  of  delibera- 
tion prescribed  by  the  Constitution  to  be  the  meaning 
and  intention  of  the  Legislature  should  be  carried  into 
prompt  execution,  and  due  effect  given  to  it  by  the 
Executive  department,  until  repealed  by  the  Legislative 
power,  or  pronounced  unconstitutional  by  the  Judiciary ; 
in  which  latter  case,  the  act  of  the  Legislature  is 
ascertained  to  be  void,  and  neither  public  officers 
nor  private  citizens  are  responsible  for  its  neglect  or 
violation. 

But  every  individual  is  bound  to  obey  a  constitu- 


CONSTITUTIONAL  JURISPRUDENCE.  77 

tional  law,  however  objectionable,  in  other  respects,  it 
may  appear  to  him ;  and  whosoever  refuses  or  withholds 
obedience  to  a  law,  on  the  ground  even  of  its  unconsti- 
tutionality, does  so  at  his  peril.  For  if  the  question  be 
judicially  decided  by  a  competent  tribunal,  in  favor  of 
its  validity,  he  is  liable  to  all  the  legal  consequences  of 
disobedience.  The  presumption,  moreover,  is  always  in 
favor  of  a  law  passed  in  accordance  with  the  forms  of 
the  Constitution ;  and  where  the  Chief  Executive  Magis- 
trate has  a  negative  upon  the  Acts  of  the  Legislature, 
that  presumption  is,  of  course,  the  stronger  against  him, 
especially  as  to  Acts  passed  under  his  own  administra- 
tion, and  which  must,  therefore,  have  received  his  official 
approval.  For  in  such  case,  the  existence  alone  of  the 
law  is  evidence  of  his  admission  of  its  constitution- 
ality, if  the  negative  he  possesses  be  absolute,  and  if 
qualified,  it  shows  that  his  objections,  if  made,  were 
overruled.  If  the  law  to  which  he  objects  were  passed 
under  a  former  administration,  his  oj[ficial,  if  not  his 
personal  obligation,  is  not  less  absolute  and  peremptory. 
For  the  negative  vested  in  him  is  a  legislative  and  not 
a  judicial  power ;  and  to  allow  a  contrary  doctrine 
would  be  to  admit  in  the  Executive  department  a  right 
to  repeal  laws  without  the  intervention  of  the  Legisla- 
ture. As,  therefore,  the  Executive  power  is  bound,  not 
only  to  obey,  but  to  carry  into  effect  the  law,  the  essen- 
tial qualities  requisite  in  that  department  are  promptness^ 
vigor,  and  responsibility. 

A  prompt  submission  to  the  law,  and  immediate 
preparation  to  enforce  it,  are  absolutely  necessary  in 
respect  to  the  authority  whence  it  emanates.  In  regard 
also  to  its  effect, — whenever  the  time  for  acting  on  a 
law  has  arrived,  its  operation  should  be  immediate  and 
7* 


78  LECTURES   ON 

decisive ;  otherwise  the  sense  of  its  protection  and  con- 
trol will  be  weakened,  and  its  power  unfelt  or  forgotten. 
On  general  principles,  therefore,  as  delay  is  reprehensi- 
ble, promptness  is  a  duty,  the  non-performance  of  which, 
in  certain  cases,  enables  the  transgressor  to  escape  pun- 
ishment. For  this  reason,  it  is  both  wise  and  humane 
that  the  execution  of  the  law  should  be  speedy,  and 
that  no  unnecessary  interval  should  be  allowed  between 
its  violation  and  the  adoption  of  measures  for  enforc- 
ing it. 

For  this  purpose,  the  Executive  Magistrate  should  be 
endowed  with  sufficient  energy.  A  feeble  Executive 
department  implies  a  feeble  execution  of  the  law,  which 
is  but  another  name  for  a  bad  execution ;  and  a  gov- 
ernment in  which  the  laws  are  not  faithfully  executed, 
whatever  it  may  be  in  theory,  must,  in  practice,  be  a 
bad  government.  A  vigor  of  action,  duly  proportioned 
to  the  exigencies  which  arise,  must  be  imparted  to  the 
Executive  power.  But  for  this  purpose,  the  proportion 
of  power  vested  to  the  occasions  that  may  be  expected 
to  require  its  exercise,  should  be  as  exact  as  possible ; 
for  if  the  power  fall  short  of  the  end  proposed,  the  evils 
already  adverted  to  will  ensue ;  and  if  it  exceed  the 
due  proportion,  the  liberties  of  the  people  would  be 
endangered.  It  is  difficult,  however,  in  a  written  Con- 
stitution, to  adopt  general  expressions  precisely  descrip- 
tive of  the  proper  extent  and  limitation  of  this  power. 
To  guard,  therefore,  against  its  abuse,  as  well  as  to 
insure  a  faithful  execution  of  the  general  trust  reposed 
in  this  department,  it  is  requisite  that  it  should  be  held 
responsible  to  the  people  for  official  delinquencies. 

Now  these  three  qualities  of  promptness,  vigor,  and 
responsibility,  are  certainly  more  likely  to  exist  where  the 


CONSTITUTIONAL  JURISPRUDENCE.  79 

Executive  authority  is  limited  to  a  single  person,  moving 
at  the  discretion  of  a  single  will.  But  in  some  republics, 
the  fear  of  danger  from  such  a  head,  has  led  to  the  intro- 
duction of  councils,  and  other  subdivisions  of  the  Execu- 
tive power  ;  and  the  consequent  imbecility  and  distrac- 
tions of  these  governments  have  probably  contributed  to 
the  preference  given  in  Europe  to  monarchies.  It  was 
falsely  conceived  that  to  vest  the  Executive  power  in  a 
single  person  was  inconsistent  with  the  nature  and  genius 
of  a  Republic  ;  or  that  a  Republic  thus  constituted  could 
long  maintain  its  freedom.  But  during  the  American 
Revolution,  neither  the  fervor  of  republican  principles, 
nor  resentment  towards  the  monarchy  then  arrayed 
against  us,  overpowered  the  deliberate  judgments  of  our 
statesmen ;  and  upon  the  establishment  of  independent 
governments,  almost  all  the  States  adopted  the  principle 
of  UNITY  in  the  Executive  power.  The  experience  of 
more  than  half  a  century  has  evinced  that,  under  proper 
limitations,  no  abuse  of  the  power  is  to  be  apprehended 
merely  from  its  unity  ;  while  every  government,  ancient 
or  modern,  constituted  upon  the  scheme  of  compound 
Executive  authority,  has  suffered  from  the  evils  of 
division,  indecision,  and  delay,  and  the  public  interests 
have  been  sacrificed  or  have  languished  under  a  feeble 
and  irregular  management.  In  those  States  of  our 
Union  where  Executive  Councils  have  been  tried,  this 
weakness  and  inefficiency  have  been  strikingly  exem- 
plified. In  most  instances  where  they  were  at  first 
adopted,  they  were  speedily  abandoned,  and  a  single 
person  substituted  in  accordance  with  the  lights  afforded 
to  the  States  in  question  by  their  own  experience,  or 
the  institutions  of  their  neighbors.^ 

1  Pennsylvania  and  Georgia. 


80  LECTURES   ON 

Unity  not  only  increases  that  efficiency  which  is 
necessary  to  preserve  tranquillity  at  home,  and  com- 
mand respect  abroad,  but  it  is  requisite  to  secure  the 
responsibility  of  the  Executive  power.  Where  there  is 
but  one  agent,  every  act  can  be  traced  and  brought 
home  to  him  ;  nor  can  there  be  any  concealment  of  the 
real  author,  and,  generally,  none  of  the  true  motives  of 
public  measures,  where  there  are  no  associates  to  divide 
or  mask  responsibility.  The  eyes  of  the  people  will  be 
constantly  directed  to  a  single  conspicuous  object,  and, 
for  these  reasons,  De  Lolme  considers  it  a  sound  maxim 
of  policy,  that  the  Executive  power  is  more  easily  con- 
fined where  it  is  one  and  indivisible.  "  If,"  he  observes, 
"  the  execution  of  the  laws  be  intrusted  to  a  number  of 
<hands,  the  true  cause  of  public  costs  is  hidden.  Tyranny, 
in  such  States,  does  not  always  beat  down  the  fences 
that  are  set  around  them,  but  it  leaps  over  them.  It 
mocks  the  efforts  of  the  people,  not  because  it  is  invin- 
cible, but  because  it  is  unknown."  ^ 

In  accordance  with  these  principles,  the  Federal  Con- 
stitution vests  the  Executive  power  in  a  single  person, 
who  is  styled  "  The  President  of  the  United  States." 
The  qualifications  and  election,  the  powers  and  duties 
of  this  high  officer,  will  now  be  the  subject  of  consider- 
ation. 

I.  His  qualifications,  and  the  mode  of  his  election. 

1.  The  Constitution  requires  that  the  President  should 
be  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  its  adoption ;  that  he  should  have 
attained  the  age  of  thirty-five  years,  and  have  been 
fourteen  years  resident  within  them.^  Considering  the 
magnitude  of  the  trust,  and  that  the  Executive  depart- 

1  On  the  Const  of  England,  p.  111. 

2  Const.  U.  S.,  Art  U.  Sect.  i.  5. 


CONSTITUTIONAL  JURISPRUDENCE.  8X 

ment  is  the  ultimate  efficient  power  in  the  Government, 
these  restrictions  will  not  appear  useless  or  unimpor- 
tant.'  The  qualification  required  of  citizenship,  was 
intended  to  prevent  ambitious  foreigners  from  intriguing 
for  the  office,  and  to  cut  off  all  those  inducements  from 
abroad,  to  corruption,  intervention,  and  war,  which  have 
frequently  and  fatally  harassed  the  elective  monarchies 
of  Europe.  The  age  required  in  the  President  is.  suf- 
ficient to  have  formed  his  public  and  private  character  ; 
and  the  previous  term  of  domestic  residence  is  intended 
to  afford  his  fellow-citizens  the  opportunity  of  gaining 
a  correct  knowledge  of  his  principles  and  capacity,  and 
to  enable  him  to  acquire  habits  of  attachment  and  obe- 
dience to  the  laws,  and  practical  devotion  to  the  public 
welfare. 

2.  The  mode  of  his  appointment  presented  one  of  the 
most  difficult  problems  solved  by  the  Convention  ;  and 
if  ever  the  tranquillity  of  this  nation  is  to  be  disturbed, 
and  its  peace  jeoparded  by  a  struggle  for  power  among 
ourselves,  it  is  the  opinion  of  some  of  our  wisest,  both 
of  our  departed  and  of  our  living  statesmen,  that  it 
will  be  on  this  very  subject  of  the  choice  of  the  Presi- 
dent. It  is  therefore  the  more  remarkable,  that  this  was 
almost  the  only  part  of  the  federal  system,  of  any  im- 
portance, which  escaped  the  severest  censure,  or  received 
the  slightest  mark  of  approbation  from  its  opponents. 
By  the  authors  of  "  The  Federalist,"  ^  the  manner  of 
choosing  the  President  was  affirmed  to  be  "  if  not  per- 
fect, at  least  excellent,"  and  "  to  unite,  in  an  eminent 
degree,  all  the  advantages  of  which  the  selection  and 
association  were  to  be  desired."     It  was,  nevertheless, 

1  No.  68,  by  Mr.  Hamilton.      • 


82  LECTURES   ON 

considered  by  Mr.  Chancellor  Kent  as  "  the  question 
which  is  to  try  the  strength  of  the  Constitution,"  and 
that  "  if  we  are  able  for  half  a  century  hereafter  to  con- 
tinue to  elect  the  Chief  Magistrate  of  the  Union,  with 
discretion,  moderation,  and  integrity,  we  shall  undoubt- 
edly stamp  the  highest  value  on  our  national  character, 
and  recommend  our  republican  institutions,  if  not  to 
the  imitation,  yet  certainly  to  the  esteem  and  admiration 
of  mankind."  ^ 

The  experience,  both  of  ancient  and  modern  Europe, 
as  this  eminent  jurist  observes,  has  certainly  been  unfa- 
vorable to  the  practicability  of  the  fair  and  peaceable 
election  of  the  Executive  of  a  great  nation.  It  was 
found  impossible  to  guard  such  elections  from  the  mis- 
chiefs of  foreign  intrigue  and  domestic  turbulence  — 
from  violence  or  corruption ;  and  men  have  generally 
sought  refuge  from  the  dangers  of  popular  elections,  in 
hereditary  Chief  Magistrates,  as  the  lesser  evil  of  the 
two.  Archdeacon  Paley^  condemns  aU  elective  mon- 
archies, and  thinks  nothing  gained  by  a  popular  choice, 
with  the  dissensions,  tumults,  and  interruptions  of  regu- 
lar industry  with  which  it  is  inseparably  connected. 
But  these  consequences  rarely  attend  our  elections ;  and 
no  such  evils  as  he  describes  have  ever  been  expe- 
rienced in  our  elections  of  a  President  by  the  Electors ; 
although,  on  one  memorable  occasion,  of  which  I  shall 
speak  hereafter,  much  riotous  and  violent  conduct  was 
exhibited  in  the  House  of  Representatives,  when,  upon 
an  equality  of  electoral  votes  between  two  of  the  per- 
sons voted  for,  the  choice  devolved  upon  that  body. 
Nor  can  any  danger  be  apprehended  in  future  from  a 

1  1  Comm.  256.     1st  Ed. 

2  Moral  and  Political  Philosophy,  p.  345. 


CONSTITUTIONAL  JURISPRUDENCE.  83 

similar  occurrence,  from  the  nature  of  the  precautions 
so  happily  concerted  to  prevent  them, — in  addition  to 
the  nature,  extent,  and  duration  of  his  power, — by  a 
change  in  the  manner  of  electing  the  President.  The 
question,  too,  was  different  with  us,  from  the  wisdom 
or  policy  of  preferring  an  hereditary  to  an  elective 
monarchy,  as  the  same  restraints  do  not  exist  in  Europe 
on  the  Executive  authority  to  diminish  its  value  in  the 
estimation  of  competitors,  where  different  orders  and 
ranks  are  established  in  their  communities,  and  large 
masses  of  property  are  accumulated  in  the  hands  of 
individuals, —  where  ignorance  and  poverty  are  widely 
diffused,  and  standing  armies  are  maintained  to  pre- 
serve the  stability  of  the  government.  The  state  of 
society  and  property  in  this  country,  and  the  moral  and 
political  training  and  habits  of  the  people  have  enabled 
us  to  adopt  the  republican  principle  in  relation  to  the 
Chief  Executive  Magistrate,  and  to  maintain  it  hitherto 
with  signal  success.  From  the  peculiar  character  of 
our  Federative  Union,  in  which  the  concerns  only  of 
the  Nation,  as  such,  are  confided  to  the  General  Gov- 
ernment, and  those  of  a  local  description,  to  the  States, — 
from  the  nature  of  the  civil  and  municipal  institutions 
of  the  States,  which  favor  the  exertions  of  industry  by 
the  certainty  of  adequate  rewards  and  secure  enjoy- 
ment, but  discourage  and  prevent  the  accumulation  of 
overgrown  estates, —  from  the  spread  of  knowledge  and 
the  prevalence  of  moral  and  religious  habits,  we  may 
reasonably  hope  that  the  checks  which  the  Constitution 
has  provided  against  the  dangerous  propensities  of  our 
system, — although  sometimes  contemned  by  ambitious 
popular  leaders, — ^w^iU  prove  continually  and  ultimately 
successful.    The  election,  however,  of  a  Supreme  Magis- 


84  LECTURES   ON 

trate  for  a  whole  nation,  affects  so  many  interests, 
addresses  itself  so  strongly  to  popular  passions,  and 
holds  forth  such  powerful  temptations  to  ambition,  that 
even  under  the  most  favorable  circumstances  and  wisest 
regulations,  it  necessarily  becomes  a  formidable  trial  to 
public  virtue,  and  sometimes  hazardous  to  the  public 
tranquillity.  The  framers  of  our  Constitution,  from  an 
enlightened  view  of  all  the  difficulties  of  the  case,  did 
not  think  it  safe  or  prudent  to  refer  the  election  of  the 
President  immediately  to  the  people,  but  confided  it  to 
a  small  body  of  Electors  appointed  in  each  State, 
under  the  direction  of  its  Legislature ;  and  in  order  to 
close  the  door  as  effectually  as  possible  against  negotia- 
tion, intrigue,  and  corruption,  they  declared  that  Con- 
gress might  determine  the  day  on  which  the  election 
should  be  held,  and  that  the  day  of  election  should  be 
the  same  in  every  State. 

It  was  essential  that  the  sense  of  the  people  should 
operate  in  the  choice  of  a  person  to  whom  so  important 
a  trust  was  to  be  confided ;  and  this  end  is  answered 
by  committing  the  right  of  election,  not  to  any  pre- 
established  body,  but  to  men  chosen  by  the  people  for 
the  special  purpose,  and  under  such  circumstances  as 
would  best  insure  the  freedom  and  purity  of  the  election. 
It  was  also  desirable  that  the  immediate  election  should 
be  made  by  men  capable  of  analyzing  the  qualities 
adapted  to  the  station,  and  who  should  act  under  cir- 
cumstances favorable  to  deliberation,  and  to  a  judicious 
combination  and  comparison  of  all  the  reasons  and 
inducements  proper  to  govern  their  choice ;  and  it  was 
fairly  and  reasonably  supposed  that  a  small  number  of 
persons,  selected  by  their  fellow-citizens  from  the  general 
mass,  would  be  most  likely  to  possess  the  information 


CONSTITUTIONAL  JURISPRUDENCE.  85 

and  discernment  requisite  to  such  an  investigation.  It 
was,  moreover,  peculiarly  desirable  to  afford  as  little 
opportunity  as  possible  to  tumult  and  disorder,  and  it 
was,  therefore,  considered  that  the  choice  of  several 
to  form  an  intermediate  body  of  electors,  would  be 
much  less  apt  to  convulse  the  community  with  any 
extraordinary  and  violent  emotioijB,  than  the  choice  of 
owe,  who  would  himself  be  the  first  object  of  the  public 
wishes  ;  and,  by  requiring  the  Electors  chosen  in  each 
State  to  assemble  and  vote  in  the  State  in  which  they 
are  appointed,  it  was  intended  that  they  should  be  less 
exposed  to  heats  and  ferments  communicated  to  them 
from  the  people,  than  if  they  were  all  to  be  assembled 
at  the  same  place. 

Nothing  was  more  to  be  desired,  and  nothing  was 
more  anxiously  attempted,  than  that  every  practical  ob- 
stacle should  be  opposed  to  cabal,  intrigue,  and  corrup- 
tion. These  deadly  foes  to  republicanism  were  naturally 
expected  to  make  their  approaches  from  more  than  one 
quarter ;  but  chiefly  from  abroad, — from  the  desire  of 
foreign  powers  to  gain  an  improper  ascendency  in  our 
public  councils  ;  and  it  was  apprehended  that  they 
might  effect  this,  by  raising  a  creature  of  their  own  to 
the  Chief  Magistracy  of  the  Union.  The  Convention, 
therefore,  guarded  against  all  danger  of  this  sort,  with 
the  most  provident  and  judicious  attention.  Another, 
and  not  less  important  object,  was  that  the  President 
should  be  independent  for  his  continuance  in  ofiice  on 
all  but  the  people  themselves.  This  object,  also,  was 
designed  to  be  secured  by  making,  as  we  have  seen,  his 
reelection  depend  upon  a  special  body  of  representa- 
tives, deputed  by  the  nation  for  the  single  purpose  of 
his  election,  instead  of  permitting  his  continuance  in 
8 


86  LECTURES  ON 

office  to  depend  on  the  will  of  Congress, — ^to  whose 
favor  he  might,  in  that  case,  be  tempted  to  sacrifice  his 
duty  and  official  dignity. 

Such  were  the  advantages  intended  to  be  combined 
and  secured  by  the  plan  as  devised  by  the  Convention. 
Whether  they  have  been  altogether  realized,  we  shall 
hereafter  have  occasion  to  inquire ;  for  the  present,  it 
may  be  as  well  to  suggest  that  the  contest  alluded  to, 
which  arose  in  1801,  has  not  been  imitated,  at  least  by 
none  of  equal  violence,  since  the  adoption  of  an  amend- 
ment of  the  Constitution  intended  to  prevent  its  recur- 
rence.^ It  has,  nevertheless,  been  deemed  advisable  by 
some  of  our  ablest  and  most  experienced  statesmen,  to 
propose  a  further  amendment,  disqualifying  the  Presi- 
dent from  reelection. 

The  Constitution  ordains  that  each  State  shall  ap- 
point, in  such  manner  as  its  Legislature  may  direct,  a 
number  of  Electors  equal  to  the  whole  number  of 
Senators  and  Representatives  which  the  State  is  entitled 
to  send  to  Congress  ;2  and  to  prevent  the  President  in 
office  at  the  time  of  the  election  from  having  an  im- 
proper influence  on  his  reelection  by  his  ordinary  agency 
in  the  government,  it  is  declared  that  no  Senator  or 
Representative,  nor  any  person  holding  an  office  of 
trust  or  profit  under  the  United  States,  shall  be  ap- 
pointed an  Elector.  In  no  other  respect  has  the  Con- 
stitution defined  the  qualifications  of  the  Electors.  In 
several  of  the  States,  the  Electors  were  formerly  chosen 
by  the  Legislature,  in  a  mode  prescribed  by  law ;  and 
this  method  still  prevails  in  Delaware  and  South  Caro- 
lina.    But  it  is  to  be  presumed  that  there  will  be  less 

^  Amendments  to  Const.  U.  S.  xir. 
2  Const.  U.  S.,  Art.  H.  Sect.  i.  2. 


CONSTITUTIONAL  JURISPRUDENCE.  87 

opportunity  for  dangerous  coalitions, — for  ambitious, 
selfish,  or  party  purposes,  were  the  choice  of  the  Electors 
referred,  as,  according  to  the  clear  sense  of  public 
opinion,  it  now  almost  universally  is,  to  the  people. 

The  Electors  are  directed  by  the  Constitution  to  meet 
in  their  respective  States  on  the  same  day,  as  we  have 
seen,  throughout  the  Union,  which,  in  pursuance  of  the 
discretionary  power  vested  in  Congress,  has  been  fixed  by 
law  on  the  first  Wednesday  in  December,  in  every  fourth 
year  succeeding  the  last  election.  The  place  of  meet- 
ing resting  in  the  discretion  of  the  State  Legislatures, 
is  usually  at  the  seat  of  the  State  Government.  When 
thus  assembled,  and  fully  organized  by  filling  up  vacan- 
cies occurring  from  the  death  or  absence  of  any  of  their 
number,  the  Electors  proceed  to  vote  by  ballot  for  two 
persons,  one  of  whom,  at  least,  must  not  be  an  inhabi- 
tant of  the  same  State  with  themselves.  According  to 
the  original  Constitution,  they  were  not  to  designate 
which  of  the  two  they  voted  for  as  President,  and  which 
for  Vice-President ;  the  latter  of  whom  was,  never- 
theless, to  be  elected  at  the  same  time,  in  the  same 
manner,  with  the  same  qualifications,  and  for  the  same 
term  as  the  President.  It  was  merely  provided  that  the 
person  having  the  greatest  number  of  votes  should  be 
the  PresidcHt,  if  such  number  were  a  majority  of  the 
whole  number  of  Electors  chosen ;  and  if  there  were 
more  than  one  having  such  majority,  and  an  equal 
number  of  votes,  the  House  of  Representatives  were 
immediately  to  choose  by  ballot,  one  of  them  for  Presi- 
dent ;  and  if  no  pe]:son  had  a  majority,  then,  from  the 
five  highest  on  the  list,  the  House  were,  in  like  manner, 
to  choose  the  President.  After  the  choice  of  the  Presi- 
dent, the  person  having  the  next  greatest  number  of 


88  LECTURES  ON 

votes  of  the  Electors,  should  be  the  Vice-President; 
but  if  there  should  remain  two  or  more  having  equal 
votes,  the  Senate  was  to  choose  from  them  by  ballot, 
the  Vice-President.  But  in  thus  choosing  the  President, 
the  votes  were  to  be  taken  by  States ;  the  Representa- 
tion from  each  State  having  one  vote,  and  a  quorum 
for  the  purpose  was  to  consist  of  a  member,  or  members 
from  two  thirds  of  the  States ;  and  a  majority  of  all 
the  States  was  necessary  to  a  choice. 

After  the  difficulty  already  alluded  to  in  procuring  a 
constitutional  choice,  in  consequence  of  an  equality  in 
the  Electoral  votes,  between  Mr.  Jefferson  and  Colonel 
Burr,  the  two  highest  on  the  list  of  persons  voted  for  by 
the  Electors,  the  Constitution  was  so  amended  as  to 
require  the  Electors  to  name  in  distinct  ballots  the  per- 
sons voted  for  respectively  as  President  and  Vice- 
President.  They  are  then  directed  to  make  distinct  lists 
of  all  voted  for  as  President,  and  as  Vice-President,  and 
the  number  of  votes  given  to  each  respectively.  These 
lists  they  are  to  sign,  certify,  and  transmit  sealed,  to  the 
seat  of  Government  of  the  United  States,  directed  to 
the  President  of  the  Senate,  before  the  first  Wednesday^ 
in  January  next  ensuing  the  election.^  An  Act  of 
Congress  passed  in  March,  1792,  requires  that  body  to 
be  in  session  on  the  second  Wednesday  in  February, 
next  ensuing  the  election,  when  the  President  of  the 
Senate,  in  the  presence  of  both  Houses  of  Congress, 
opens  the  certificates  received,  and  the  votes  are  counted. 
It  is  not  explicitly  declared  by  whom  the  votes  are  to  be 
counted,  and  the  result  proclaimed ;  but  the  practice  has 
been  for  the  President  of  the  Senate  to  appoint  a  joint 

1  Amendment  to  Const.  U.  S.,  xii. 


CONSTITUTIONAL  JURISPRUDENCE.  89 

committee  of  the  two  houses  to  perform  the  first  of 
those  duties,  and  himself  to  perform  the  last,  the  two 
Houses  being  present  as  spectators,  to  witness  the  fair- 
ness and  accuracy  of  the  proceeding. 

The  person  having  the  greatest  number  of  votes  for 
President,  if  a  majority  of  the  whole  number  of  Electors 
appointed,  is  declared  to  be  elected  to  that  office ;  and 
if  no  person  have  such  majority,  then  from  those  having 
the  highest  numbers  not  exceeding  three — instead  of 
Jive^  as  was  required  by  the  Constitution  —  on  the  list 
of  those  voted  for  as  President,  are  immediately  to 
choose  the  President  in  the  manner  directed  in  the 
Constitution,  the  same  number  of  States  being  requisite 
to  form  a  quorum,  and  the  same  majority  of  them 
necessary  to  a  choice.  The  amendment  then  declares 
that  the  person  having  the  greatest  number  of  votes  for 
Vice-President  —  if  a  majority  of  the  whole  number  of 
Electors  appointed  —  shall  be  the  Vice-President ;  and 
if  no  person  have  such  majority,  then  from  the  two 
highest  numbers  on  the  list,  the  Senate  shall  choose  the 
Vice-President ;  a  quorum  for  the  purpose  to  consist  of 
two  thirds  of  the  whole  number  of  Senators.  But  no 
person  constitutionally  ineligible  to  the  office  of  Presi- 
dent shall  be  eligible  to  that  of  Vice-President. 

Although  the  Constitution  directs  that  when  no  per- 
son is  found  to  have  a  majority  of  the  Electoral  votes, 
the  choice  shall  be  immediately  made  by  the  House  of 
Representatives,  yet  it  is  not.  held  obligatory  upon  that 
House  to  proceed  to  the  election  directly  upon  the  sepa- 
ration of  the  two  Houses ;  but  that  it  may  proceed 
either  at  that  time  and  place,  or  omit  it  until  afterwards. 
This  construction  was  adopted  before  the  amendment 
in  question,  and  t^ere  can  now  be  no  doubt  of  its 
8* 


90  '  LECTURES   ON 

correctness,  as  *  the  amendment  expressly  declares  the 
choice  of  the  House  to  be  valid,  if  made  before  the 
fourth  of  March  following  the  day  on  which  the  Elec- 
toral votes  are  counted.  Accordingly,  in  1825,  when 
there  was  again  no  choice  by  the  Electors,  the  House 
of  Representatives  retired  to  their  own  chamber,  and 
on  this,  as  well  as  upon  the  occasion  already  mentioned, 
the  Senators  were  allowed  to  be  present  as  spectators 
only  of  the  proceeding,  and  witnesses  of  the  result.  In 
case  no  choice  of  President  be  made  by  the  House  of 
Representatives  before  the  time  limited  for  their  action, 
it  is  declared  that  the  Vice-President  shall  act  as  Presi- 
dent, as  in  the  case  of  the  death  or  constitutional 
inability  of  the  President. 

The  Constitution,  as  thus  amended,  does  not  prescribe 
specifically  when  or  where  the  Senate  is  to  choose  the 
'Vice-President,  in  case  no  choice  be  made  by  the  Electors, 
and  no  case  has  occurred  to  form  a  precedent ;  but  from 
analogy  to  the  provision  and  practice  in  regard  to  the 
President,  it  is  presumed  that  the  Senate  may  elect  one 
at  any  time  before  the  ensuing  fourth  of  March.  With 
respect  to  the  day  to  which  the  secondary  election  is  in 
both  cases  limited,  it  is  to  be  remarked  that  it  was 
adopted  in  reference  to  the  law  existing  previously  to 
this  amendment  of  the  Constitution,  which  had  declared, 
as  we  have  seen,  that  the  term  of  four  years  for  which 
the  President  and  Vice-President  are  elected,  should 
commence  on  the  fourth  day  of  March  next  succeeding 
the  day  on  which  the  votes  of  the  Electors  are  given. 
The  effect  of  this  amendment,  therefore,  is  to  render 
the  provisions  of  the  Act  of  Congress,  relative  to  the 
specific  times  appointed  for  the  performance  of  the  sev- 
eral duties  enjoined  by  the  Constitution,  thus  amended, 


CONSTITUTIONAL  JURISPRUDENCE.  91 

in  regard  to  the  election  of  President  and  Vice-Presi- 
dent, as  permanent  as  the  Constitution  itself. 

Although  the  wisdom  and  policy  of  this  amendment 
has  been  doubted  by  some  of  our  ablest  statesmen  and 
jurists,  there  are  others  who  consider  it  an  improvement, 
not  only  with  respect  to  voting  separately  for  President 
and  Vice-President,  but  in  reducing  the  number  of 
candidates  from  which  the  Congressional  selection  of  a 
President  is  to  be  made  from  five  to  three,  while  the 
Senate,  in  their  choice  of  a  Vice-President,  is  confined 
to  the  two  highest  numbers  of  those  voted  for  by  the 
Electors.  In  another  particular,  also,  the  amendment 
may  be  considered  beneficial.  By  the  former  mode  of 
proceeding,  the  Senate  was  restrained  from  acting  until 
the  House  had  made  its  selection  of  a  President,  which, 
if  parties  ran  high,  might  be  indefinitely  delayed.  By 
the  amendment,  the  Senate  may  proceed  to  choose  a 
Vice-President,  in  case  one  be  not  chosen  by  the  Elec- 
tors, immediately  upon  the  declaration  of  that  result. 
Under  the  original  mode,  if  the  House  of  Representatives, 
in  the  event  of  no  choice  by  the  Electors,  did  not  choose 
a  President  by  the  fourth  of  March,  and  the  provision 
that  Congress  is  authorized  to  make  by  law  for  supply- 
ing the  vacancy  of  the  office,  should  fail,  it  must  have 
remained  vacant,  unless,  as  it  has  been  contended,  the 
Vice-President  then  in  office  was  to  act  as  President  for 
the  next  official  term ;  so  that,  notwithstanding  the  public 
confidence  may  have  been  wholly  withdrawn  firom  him, 
he  would  actually  become  President  for  the  ensuing  four 
years,  when  he  had  been  chosen  by  the  Electors,  in  ref- 
erence, not  in  form,  but  in  fact,  to  the  Vice-Presidency, 
and  that,  too,  for  the  preceding  term  ;  whereas,  on  the 
plan  now  in  force,  if  no  President  be  chosen,  either  by 


92  LECTURES   ON 

the  Electors,  or  the  House  of  Representatives,  the  Vice- 
President  then  to  fill  the  office  of  President,  will  have 
recently  received  the  suffrages  of  the  Electors,  as  weU 
as  of  the  Senators.  After  all,  however,  it  may  be 
doubted  whether  a  greater  evil  has  not  been  introduced 
by  the  amendment  in  the  greater  facility  it  affords  to 
party  organization,  and  the  selection  of  mere  party 
leaders,  which  was  the  very  evil  intended  to  be  guarded 
against  by  the  former  regulation,  besides  insuring  the 
election  of  two  persons,  either  of  whom  would  be  com- 
petent for  the  higher  office. 

From  a  review  of  these  various  provisions,  the  mode 
of  electing  the  Supreme  Magistrate  of  the  Union  ap- 
pears to  be  well  calculated  to  secure  a  discreet  choice, 
and  to  avoid  those  evils  which  the  partizans  of  monarchy 
have  ascribed,  and  the  experience  of  past  ages  have 
shown  to  belong  to  popular  election.  It  must,  neverthe- 
less, be  acknowledged,  that  the  large  and  elevated  views 
of  the  men  who  planned  the  Constitution,  and  the 
expectations  of  those  who  defended  this  portion  of  it, 
upon  the  refined  theoretical  reasoning  I  have  adverted 
to,  have  not  been  realized  in  its  practical  operation  and 
effects.  It  was  supposed  that  the  election  of  the  Presi- 
dent would  be  committed  to  men  not  likely  to  be 
swayed  by  party  or  personal  bias ;  who  would  act 
unfettered  by  previous  commitment,  uncontrolled  by 
combinations  or  discipline,  and  be  subject  neither  to 
intimidation  nor  corruption ;  and  it  was  thought  that 
the  choice  of  an  intermediate  body  of  Electors,  con- 
sisting of  several  members,  would  be  much  less  apt  to 
agitate  and  convulse  the  community  than  the  election 
of  a  single  person,  who  was  himself  the  first  object  of 
their  wishes.     Perhaps   those  views   and  expectations 


CONSTITUTIONAL  JURISPRUDENCE.  98 

were  founded  on  too  exalted  an  estimate  of  human 
nature ;  and  that,  making  due  allowance  for  human 
frailty  and  imperfection,  they  have  not  been  altogether 
frustrated.  Experience,  however,  has  proved  that  the 
Electors  do  not,  in  fact,  assemble  for  a  strictly  free 
exercise  of  their  own  judgments,  but  for  the  purpose 
of  giving  a  constitutional  sanction  to  the  choice  of  a 
particular  candidate,  previously  designated  by  their 
party  leaders.  In  some  instances,  the  principles  on 
which  they  are  constituted  have  been  so  far  forgotten, 
that  the  individual  opinion  of  the  Elector  has  submitted 
to  the  dictation  of  those  by  whom  he  was  chosen  ;  and 
in  others,  the  Electors  have  even  pledged  themselves 
beforehand  to  vote  for  a  candidate  prescribed  to  them 
by  the  managers  of  their  party ;  and  thus,  the  whole 
foundation  of  the  elaborate  theory  on  which  this  part 
of  the  Constitution  was  built,  has  been  subverted  in 
practice.  The  essential  ends  of  the  Constitution  have, 
nevertheless,  in  a  measure  been  attained ;  and  in  a 
government  in  which  parties  must  ever  exist,  that  sys- 
tem may  be  deemed  salutary  in  its  operation,  which 
results  in  the  election  of  the  most  eminent,  or,  even  the 
most  popular  statesman  of  the  most  numerous  party. 

Had  any  other  mode  of  election  been  adopted,  it 
would  have  been  impossible,  in  a  Republican  Govern- 
ment, to  have  excluded  party  considerations,  interests, 
and  feelings.  The  great  objects  were  to  preserve  purity 
as  well  as  harmony  in  the  election,  and  to  secure  in- 
tegrity as  well  as  independence  in  the  Executive  Power. 
Had  the  choice  of  President  been  referred  in  the  first 
instance  to  Congress,  it  would,  without  excluding  party 
views  and  motives,  have  rendered  him  too  dependent 
on  the  immediate  authors  of  his  elevation  to  comport 


94  LECTURES   ON 

with  the  requisite  energy  of  his  department,  and  have 
tempted  him  to  indulge  in  intrigues  and  manoeuvres 
utterly  subversive  of  the  fairness  of  the  election,  and 
the  purity  of  his  own  character.  He  would  then  no 
longer  consider  himself  responsible  to  the  People,  but 
would  be  prone  to  obey,  and  fearful  to  offend  a  power 
which,  in  that  case,  would  have  shown  itself  greater 
than  the  People  themselves. 

Whether  greater  ferments  and  commotions  would 
accompany  a  general  election  of  the  President  by  the 
whole  body  of  the  People,  than  have  hitherto  attended 
the  elections  by  Electors, —  and,  certainly,  these  have, 
as  yet,  excited  no  real  alarm, —  or  whether  that  mode 
of  election  would,  with  regard  to  the  prescribed  ratio 
of  representation,  be  conveniently  practised,  remains, 
indeed,  to  be  ascertained.  It  has  been  objected  that 
such  a  measure  would  "  lead  to  an  entire  consolidation 
of  the  Government,  and  the  annihilation  of  the  State 
sovereignties,  so  far  as  concerns  the  organization  of  the 
Executive  Department."  But  if  the  difference  should 
consist  merely  in  the  form,  and  not  the  objects  of  the 
election, — nor  in  the  authority  that  orders  and  controls 
it, —  if,  for  instance,  the  People  in  their  several  States, 
instead  of  voting; for  Electors,  should,  in  the  same 
manner,  at  the  same  time  and  places,  and  under  the 
same  regulations,  vote  directly  for  the  President  and 
Vice-President,  and  the  number  of  votes  to  which  the 
State  is  entitled  under  the  existing  provisions  of  the 
Constitution,  should  be  computed  as  given  to  the  per- 
sons receiving  the  highest  vote  from  the  people  for  these 
offices  respectively,  I  must  confess  my  inability  to  dis- 
cover any  greater  danger  to  the  sovereignty  of  the 
States  than  exists  under  the  present  systeAi.     Nor,  as 


CONSTITUTIONAL  JURISPRUDENCE.  96 

the  Electors  are  now  avowedly  chosen  in  direct  refer- 
ence to  the  persons  for  whom  they  are  expected,  if  not 
pledged  to  vote,  can  I  conceive  any  sound  objection  to 
such  an  amendment.  On  the  contrary,  I  think  there  is 
much  to  recommend  it,  especially  if  accompanied  by  a 
provision  superseding  the  ultimate  reference  to  Con- 
gress, in  case  of  no  choice  by  the  Electors,  by  a  second- 
ary resort  to  the  latter  body.  Such  an  alteration  has, 
indeed,  been  actually  proposed  and  urged  in  Congress 
with  great  force  of  argument,  particularly  the  substitu- 
tion of  a  final  election  by  Electors,  instead  of  the 
House  of  Representatives,  in  cases  where  no  choice  of 
a  President  is  made  by  the  People. 

From  the  example  of  the  illustrious  individual  who 
first  held  the  office,  a  practice  has  arisen,  and  seems 
now  to  be  permanently  established,  for  the  President  to 
decline  a  second  reelection.  As  this  precedent  has 
never  been,  as  yet,  and  probably  never  will  be,  departed 
from,  it  has  in  effect  limited  the  period  of  service  to 
eight  years,  subject  to  an  intermediate  election.  But 
to  render  the  President  more  independent,  the  adminis- 
tration and  its  policy  more  stable,  and  the  People  more 
secure,  it  would  be  better  that  this  practice  should  be 
sanctioned  and  legalized  by  being  incorporated  in  the 
system  ;  and  such  an  amendment  of  the  Constitution, 
in  connection  with  that  already  suggested,  has  been 
actually  brought  forward,  and  appeared  to  have  been 
favored  by  some  of  the  most  intelligent  and  upright  of 
our  public  men. 

Having  fully  explained  the  manner  in  which  the 
Supreme  Executive  office  is  constituted,  and  the  mode 
of  electing  the  President  and  Vice-President,  I  proceed 
to  consider  — 


96  LECTUKES   ON 

11.  The  powers  with  which  the  President  is  in- 
vested. 

1.  The  first  of  these  which  offers  itself  to  observation, 
has  already  been  adverted  to  in  reviewing  the  Legisla- 
tive departments,  and  its  connection  with  the  Executive 
power,  for  the  preservation  of  their  mutual  independ- 
ence,—  I  mean  the  qualified  negative  of  the  President 
upon  the  concurrent  acts  of  Congress,  or  his  right  of 
returning  Bills  and  Resolutions,  with  his  objections  to 
them,  to  the  House  in  which  they  originated,  for  recon- 
sideration ;  whereby  they  are  prevented  from  taking 
effect  as  laws,  unless  again  passed  by  two  thirds  of  the 
members  present  in  each  House  respectively. 

The  propensity  of  the  Legislative  department  to  in- 
trude upon  the  rights  and  absorb  the  powers  of  the  other 
weaker  branches  of  the  government,  and  the  consequent 
necessity  of  furnishing  the  latter  with  constitutional 
arms  for  their  defence,  have  already  been  the  subject  of 
remark.  From  clear  and  indubitable  principles  it  has 
been  shown  that,  without  this  control  over  the  proceed- 
ings of  Congress,  the  Executive  department  would  be 
unable  to  sustain  itself  against  the  encroachments  of 
the  Legislature.  The  President  might  gradually  be 
stripped  of  his  authority  by  concurrent  Resolutions  of 
Congress,  or  so  weakened  as  ultimately  to  be  annihi- 
lated by  a  single  vote  of  the  more  popular  branch  of  the 
Legislature;  and  by  the  one  mode  or  the  other,  the 
Legislative  and  Executive  powers  might  speedily  be 
united  in  the  same  hands.  Indeed,  if  no  tendency  had 
ever  been  manifested  in  Legislative  bodies  to  invade 
the  rights  of  the  Executive  power,  just  reasoning  and 
theoretic  propriety  would  of  themselves  teach  us,  that 
the  one  ought  not  to  be  left  at  the  mercy  of  the  other. 


CONSTITUTIONAL  JURISPRUDENCE.  97 

but  should  be  endowed  with  a  constitutional  and  effec- 
tual power  of  self-defence. 

But  the  power  in  question  has  a  further  use.  It  not 
only  serves  as  a  shield  to  the  Executive  authority,  but 
affords  an  additional  security  against  the  enactment  of 
improper  laws.  It  establishes  a  salutary  guard  upon 
the  Legislative  power,  well  calculated  to  defend  the 
community  against  the  effects  of  faction,  precipitancy, 
or  any  impulse  hostile  to  the  public  good,  which  may 
happen  for  the  moment  to  influence  a  majority  of 
Congress.^  The  propriety  of  vesting  such  a  power  in 
the  Chief  Magistrate  has  been  sometimes  combated  on 
the  ground  of  its  presuming  that  a  single  individual 
was  possessed  of  more  wisdom  and  virtue  than  a 
numerous  assembly.  The  question,  however,  does  not 
depend  upon  the  supposition  of  superior  wisdom  and 
virtue  in  the  President,  but  upon  the  presumption  that 
the  Legislature,  though  possessed  of  those  qualities  in 
the  highest  degree,  would  still  be  fallible ;  that  the  love 
of  power  would  sometimes  dispose  them  to  acts  injuri- 
ous to  the  rights  of  the  other  members  of  the  Govern- 
ment ;  that  a  spirit  of  faction  might  sometimes  pervert 
their  deliberations,  and  that  momentary  impressions 
sometimes  impel  them  to  measures  which,  upon  mature 

1  A  prerogative  has,  of  late  years,  been  claimed  in  favor  of  majori- 
ties, similar  to  that  vested  by  the  English  Constitution  in  the  Crown, 
viz :  that  they  "  can  do  no  torong."  But  this  was  not  the  doctrine  of 
Mr.  Madison,  and  the  other  founders  of  our  Constitution.  That 
great  republican  statesman  defined  "  any  number  of  citizens,  whether 
amounting  to  a  majority  or  a  minority  of  the  whole,  united  and  actu- 
ated by  some  common  impulse  of  purpose  or  interest  adverse  to  the 
rights  of  other  citizens,  or  to  the  permanent  and  aggregate  interests 
of  the  community,"  to  be  "  a  faction."  See  "  The  Federalist,"  No.  10. 
9 


98  LECTURES   ON 

reflection,  they  would  themselves  condemn.  Thus  the 
primary  inducement  of  conferring  this  power  on  the 
President  is  to  enable  him  to  defend  himself;  the  sec- 
ondary^ to  increase  the  chances  in  favor  of  the  com- 
munity against  the  passage  of  bad  laws  by  Congress, 
through  haste,  inadvertence,  or  design. 

2.  The  President  is  constituted  Uommander-in-chief 
of  the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  States,  when  called  in  the  service 
of  the  Union.i 

The  command  and  direction  of  the  public  force,  to 
execute  the  laws,  maintain  peace  and  tranquillity  at 
home,  and  resist  invasion  from  abroad,  are  powers  so 
obviously  of  an  executive  nature,  and  so  peculiarly 
demand  the  exercise  of  the  qualities  characteristic  of 
that  department, — these  duties  have  been  so  uniformly 
appropriated  to  it  in  every  well-organized  government, 
and  are  so  consonant  to  the  precedents  of  the  State 
Constitutions,  that  little  is  necessary  to  explain  or 
enforce  them.  Of  aU  the  cares  or  concerns  of  govern- 
ment, the  management  of  war,  which  implies  the  direc- 
tion of  the  public  force,  demands  most  peculiarly  the 
exercise  of  power  by  a  single  hand ;  and  even  those  of 
our  States  which  have,  in  other  matters,  coupled  their 
Chief  Magistrate  with  a  Council,  have,  for  the  most 
part,  concentrated  the  military  authority  in  him  alone. 

3.  The  President  has  the  sole  power  of  granting 
reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment.^ 

The  necessity  of  such  an  authority  in  every  govern- 
ment, arises  from  the  infirmities  incident  to  the  admin- 

1  Const.  U.  S.,  Art.  II.  Sect.  ii.  1.  s  Ibid.  3. 


COJfSTITUTIONAL  JUKISPRUDENCE.  99 

istration  of  human  justice.  And  were  it  possible,  in 
every  case,  to  maintain  a  just  proportion  between  the 
crime  and  the  penalty ;  were  the  rules  of  evidence,  and 
the  mode  of  trial,  so  perfect  as  to  preclude  every  possi- 
bility of  mistake  or  injustice,  still,  policy  would  some- 
times require  the  uemission  of  a  punishment  strictly  due 
for  a  crime  clearly  ascertained.  Both  humanity  and 
policy  dictate  that  this  benign  prerogative  of  mercy 
should  be  as  little  as  possible  fettered  and  embarrassed, 
and  suggests  as  plainly  the  expediency  of  vesting  it 
exclusively  in  the  President. 

As  the  sense  of  responsibility  is  always  stronger  in 
proportion  as  it  is  undivided,  it  may  justly  be  inferred 
that  one  man  will  be  more  ready  to  recognize  the  force 
of  motives  and  reasons  for  mitigating  the  rigor  of  the 
law,  and  least  apt  to  yield  to  inducements  calculated  to 
shelter  a  fit  object  from  its  exemplary  visitation  ;  whUe, 
on  the  other  hand,  as  men  generally  derive  confidence 
from  their  numbers,  it  may,  with  equal  justice  be  appre- 
hended, that  they  might  often  encourage  each  other  in 
acts  of  obduracy,  and  be  less  sensible  to  the  dread  of 
censure  for  an  injudicious  or  affected  clemency.  The 
power  oi  pardon  vested  in  the  President  is  not,  however, 
without  limitation.  He  is  precluded,  as  we  have  seen, 
in  cases  of  impeachment,  from  screening  public  officers, 
with  whom  he  may  have  formed  a  dangerous  or  corrupt 
coalition,  or  who  may  frequently  be  his  favorites  and 
dependents. 

4.  The  President  has  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties^  provided 
two  thirds  of  the  Senators  present  concur.^ 

1  Const.  U.  S.,  Art.  II.  Sect.  ii.  4. 


100  LECTURES   ON 

Much  difference  of  opinion  seems  to  prevail  among 
writers  on  Government  npon  the  question  whether,  in 
the  natural  distribution  of  power,  the  authority  to 
negotiate  and  conclude  compacts  and  arrangements 
with  foreign  nations,  is  properly  of  Legislative  or  of 
Executive  cognizance.  As  treaties  are  declared,  by  the 
Constitution  of  the  United  States  to  be  a  part  of  the 
supreme  law  of  the  land, — as  by  means  of  these  national 
engagements,  new  relations  are  formed,  and  new  obliga- 
tions contracted,  it  seems  more  consonant  to  the  princi- 
ples of  our  Government  to  consider  the  right  of  entering 
into  them  as  falling  within  the  jurisdiction  of  the  Legis- 
lature. On  the  other  hand,  the  preliminary  negotiations 
which  may  be  required,  and  the  secrecy  and  dispatch 
proper  to  take  advantage  of  a  sudden  and  favorable 
turn  in  public  affairs,  render  it  expedient  to  place  this 
power  in  the  hands  of  the  Executive.  The  framers  of 
the  Constitution  were  influenced  more  by  the  latter, 
than  the  former  consideration.  But  although  the  power 
in  question,  if  we  carefully  attend  to  its  operation,  will 
be  found  to  partake  more  of  the  Legislative  than  of  the 
Executive  character,  yet  it  does  not  seem  to  fall  strictly 
within  either  department.  The  essence  of  the  Legisla- 
tive power  is  to  prescribe  laws  for  the  regulation  of  the 
Commonwealth  ;  while  the  execution  of  those  laws,  and 
the  employment  of  the  pubUc  force,  either  for  that  pur- 
pose, or  for  the  common  defence,  comprise  all  the 
proper  functions  of  the  Executive  magistrate.  The 
power  of  making  treaties  relates  neither  to  the  execu- 
tion of  subsisting  laws,  nor  to  the  making  of  new  ones. 
Its  objects  are  contracts,  which  have,  indeed,  the  force 
of  laws,  but  derive  that  force,  not  from  legislation,  but 
from  the  obligations  of  good  faith.     They  are  not  rules 


CONSTITUTIONAL  JUKISPRUDENCE.  101 

prescribed  by  the  supreme  legislative  power  to  the 
citizens  of  the  State,  but  agreements  between  sovereign 
and  independent  States.  This  power,  then,  forms  a 
distinct  department,  and  the  Constitution  has  wisely 
confided  it,  in  its  preliminary  stages,  to  the  President. 

The  qualities  indispensable  to  the  management  of 
international  intercourse  and  negotiation,  point  to  the 
President  as  the  most  fit  organ  of  communication 
with  foreign  powers,  and  the  efficient  agent  in  the 
conclusion  of  treaties ;  while  the  vast  importance  of 
the  trust,  and  the  operation  of  treaties  as  laws,  strongly 
recommend  the  participation  of  a  portion,  at  least,  of 
the  Legislative  power  in  the  office  of  making  them. 
The  Senate  was  most  judiciously  selected  for  that  pur- 
pose, not  only  as  the  deposit  of  the  power  in  that  body 
imparts  additional  strength  and  security  to  it,  as  the 
weaker  branch  of  the  Legislature,  but  because,  from  its 
smaller  number  and  greater  permanence,  it  may  be 
more  readily  convened,  and  is  moreover  governed  by 
steadier  and  more  systematic  views  of  public  policy, 
and  enabled  to  act  with  due  promptitude  and  firmness. 

5.  The  President  is  invested  with  the  power  to  nomi- 
nate^ andf  with  the  advice  and  consent  of  the  Senate,  to 
appoint  Ambassadors,  and  other  pubfic  Ministers,  and 
Consuls,  Judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States  whose  appointments  are 
not  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law.  But  Congress  may  vest  the  appointment 
of  such  inferior  officers  as  they  may  think  proper,  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the  Heads 
of  Departments.! 

1  Const.  U.  S.,  Art.  II.  Sect.  ii.  5. 

9* 


102  LECTURES   ON 

The  exercise,  by  the  people  at  large,  of  this  power 
of  appointing  the  subordinate  officers  of  the  govern- 
ment would  be  impracticable  ;  and  a  concurrent  right 
of  nomination  by  the  Legislature,  or  any  other  select 
body,  would  afford  great  temptation  and  opportunity  to 
intrigue,  favoritism,  and  corrupt  cabals,  besides  releas- 
ing the  appointing  power  from  all  responsibility.  No 
plan,  probably,  could  have  been  devised  better  calcu- 
lated, upon  the  whole,  to  promote  a  judicious  choice  of 
men  to  fill  the  public  offices,  than  that  which  was 
adopted.  The  power  of  selecting  the  Heads  of  Depart- 
ments^ who,  by  the  way,  are  not  otherwise  recognized  in 
the  Constitution,  but  are  established  by  law  to  aid  the 
President  in  the  discharge  of  his  Executive  duties ;  of 
nominating  agents  to  whom  the  immediate  conduct  of 
international  affairs,  and  the  negotiation  of  foreign 
treaties  are  confided ;  and  of  selecting  the  proper  men 
for  the  highest  judicial  stations,  is  with  peculiar  pro- 
priety vested  in  the  President,  as  he  is  held  responsible 
for  those  acts  of  his  immediate  assistants  and  confi- 
dential advisers  which  receive  his  sanction,  is  charged 
with  the  management  of  foreign  affairs,  and  bound  to 
see  both  the  treaties  and  the  laws  faithfully  executed. 

The  association  of  the  Senate  with  the  President  in 
the  exercise  of  this  power,  is  an  exception  to  the  general 
delegation  of  the  Executive  authority,  which,  were  it 
not  accompanied  by  the  provision  vesting  in  him  the 
exclusive  right  of  nomination,  would  be  attended  by 
the  evils  already  adverted  to.  But  this  power  of  nomi- 
nation is,  for  all  useful  pm-poses  of  restraint,  equivalent 
to  a  power  of  absolute  appointment ;  and  imposes  upon 
the  President  the  same  vivid  sense  of  responsibility, 
and  the  same  necessity  of  meeting  the  public  approba- 


CONSTITUTIONAL  JURISPRUDENCE.  103 

tion  or  censure ;  while  the  advice  and  consent  of  the 
Senate,  which  are  necessary  to  render  the  nomination 
effectual,  can  never  be  attended  with  mischievous  con- 
sequences, and  must,  at  all  times,  prove  a  check  upon 
the  misinformation  or  errors  of  the  President.  To 
prevent  the  inconvenience  which  would  arise  from  oc- 
casional vacancies  in  office  when  the  Senate  is  not  in 
session,  the  President  has  power  to  fill  up  those  which 
happen  during  a  recess,  by  granting  commissions  which 
expire  at  the  end  of  the  next  session  of  Congress.^ 

6.  The  remaining  duties  of  the  President  consist  in 
giving  information  to  Congress  of  the  state  of  the 
Union ;  and  recommending  to  their  consideration  such 
measures  as  he  shall  judge  necessary  or  expedient.  He 
may,  on  extraordinary  occasions,  convene  both  Houses 
of  Congress,  or  either  of  them,  and,  in  case  of  disagree- 
ment between  them,  may,  as  we  have  seen,  adjourn 
them  to  such  time  as  he  may  think  proper.  It  is  his 
duty  to  receive  ambassadors,  and  other  public  ministers 
from  abroad, — to  commission  all  officers  of  the  United 
States,  and  generally  and  comprehensively  to  take  care 
that  the  laws  be  faithfully  executed.^ 

Such  are  the  powers  vested  by  the  Constitution  in 
the  President ;  and  so  far  as  they  are  derived  from  that 
instrument,  he  is  beyond  the  control  of  any  other  branch 
of  the  government,  except  in  the  mode  it  prescribes, — 
by  impeachment.  But  it  by  no  means  follows  that 
every  officer  in  every  subdivision  of  the  Executive  de- 
partments, is  under  the  exclusive  control  of  the  Presi- 
dent. Congress  has  created  certain  subordinate  officers 
to  assist  the  President  in  the  discharge  of  his  duties, 

1  Const.  U.  S.,  Art.  II.  Sect.  ii.  5. 

2  Jbij,^  Art.  n.  Sect.  iii. 


104  LECTURES   ON 

and  has  organized  the  several  "  Departments,"  of  which 
it  has  constituted  those  officers  the  "  Heads." '  Through 
these,  the  President  speaks  and  acts  in  relation  to  the 
subjects  appertaining  to  their  respective  duties.  For 
certain  duties  are  imposed  upon  each  of  them  by  law, 
to  be  discharged  under  the  direction  of  the  President. 
It  would,  nevertheless,  be  an  alarming  doctrine  that 
Congress  cannot  impose  upon  any  Executive  officer 
any  duty  it  may  think  proper,  not  repugnant  to  any 
right  secured  by  the  Constitution,  and  render  such  duty, 
and  his  responsibility  for  its  discharge,  subject  to  the 
control  of  the  law,  and  not  the  direction  of  the  Presi- 
dent,—  especially  when  the  duty  enjoined  is  of  a  merely 
ministerial  character.  Such  a  doctrine  would  invest  the 
President  with  a  dispensing  power,  which  has  no  coun- 
tenance for  its  support  in  any  part  of  the  Constitution, 
and  enable  him  to  control  the  legislation  of  Congress, 
and  paralyze  the  administration  of  justice. 

In  general,  however,  the  official  duties  of  these  Heads 
of  Departments  are  not  mere  ministerial  duties.  In  the 
administration  of  the  various  and  important  business 
of  their  offices,  they  are  continually  required  to  exercise 
judgment  and  discretion.     They  must  use  their  judg- 


1  There  are,  at  present,  1.  "  The  Secretary  of  State,"  to  whom  is 
committed  the  charge  of  foreign  affairs.  2.  "  The  Secretary  of  the 
Interior,"  having  charge  of  domestic  concerns,  and  Indian  affairs. 
3.  "  The  Secretary  of  the  Treasury,"  superintending  the  revenue  and 
financial  affairs  of  the  government.  4,  "  The  Secretary  at  War," 
charged  with  the  management  of  military  affairs.  5.  "  The  Secretary 
of  the  Navy,"  having  charge  of  the  naval  affairs  of  the  Union. 
6.  The  Postmaster-General,  as  superintending  the  management  of 
postal  concerns,  both  in  regard  to  finance  and  the  transportation  of 
the  mails.  7.  The  Attorney-General,  as  "  Head "  of  the  recently 
created  «•  Law  Department." 


CONSTITUTIONAL  JURISPRUDENCE.  105 

ment  in  expounding  the  laws  and  resolutions  of  Con- 
gress, under  which  they  are,  from  time  to  time,  required 
to  act.  In  cases  of  doubt,  the  Secretaries  have  a  right 
to  call  upon  the  Attorney- General  to  assist  them  with 
his  counsel ;  and  it  would  be  difficult  to  imagine  why  a 
legal  adviser  should  have  been  provided  by  law  for  the 
other  Heads  of  Departments,  as  well  as  for  the  Presi- 
dent himself,  unless  their  duties  were  regarded,  in  some 
instances,  as  such  in  which  judgment  and  discretion 
were  to  be  exercised. 

If  a  suit  should  come  before  the  courts  of  the  United 
States,  which  involved  the  construction  of  any  law 
imposing  duties  on  the  Head  of  a  Department,  the 
judges  certainly  would  not  be  bound  by  the  construc- 
tion he  may  have  given  to  it.  K  they  held  his  decision 
to  be  wrong,  they  would,  of  course,  pronounce  judg- 
ment accordingly.  But  the  judgment  of  the  court  upon 
its  construction  of  the  law,  must  be  given  in  a  case  in 
which  it  has  jurisdiction ;  and  in  which  it  is  its  duty  to 
interpret  the  Act  of  Congress  in  order  to  ascertain  the 
rights  of  the  parties.  The  Supreme  Court  cannot  en- 
tertain an  Appeal  from  a  decision  of  one  of  the  Heads 
of  Departments,  nor  revise  his  judgment  in  any  case 
where  the  law  authorizes  him  to  exercise  his  discretion 
or  judgment ;  nor  can  it,  by  mandamus^  act  directly  upon 
the  officer,  or  guide  and  control  his  judgment  or  discre- 
tion, in  matters  committed  to  his  care  in  the  ordinary 
discharge  of  his  official  duties.  The  interference  of  the 
courts  with  the  performance  of  the  ordinary  duties  of 
the  Executive  Departments  of  the  government,  would 
be  productive  of  nothing  but  mischief,  and  this  power 
was  never  intended  to  be  given  to  them.^ 

I  12  Peters,  524 ;  14  Ihid.  497  ;  1  Howard,  120. 


106  LECTURES   ON 

III.  The  support  of  the  President,  which  is  the  next 
subject  of  examination,  is  secured  by  a  provision  in  the 
Constitution,  which  declares  that  he  shall,  at  stated 
times,  receive  for  his  services  a  compensation  which 
shall  neither  be  increased  nor  diminished  during  the 
period  for  which  he  was  elected  ;  and  that  he  shall  not 
receive,  within  that  time,  any  other  emolument  from 
the  United  States,  or  any  of  the  States.^  This  pro- 
vision was  intended  to  strengthen  and  preserve  the 
proper  independence  and  energy  of  the  Executive  De- 
partment. It  would  be  in  vain  to  declare  that  the 
different  departments  of  the  government  should  be 
separate  and  distinct,  if  the  Legislature  possessed  a 
control  over  the  salaries  of  the  Chief  Executive  Magis- 
trate and  the  Judicial  officers.  This,  indeed,  would  be 
to  disregard  the  voice  of  experience,  and  the  operation 
of  invariable  principles  of  human  conduct.  The  former 
Constitution  of  Virginia,  for  instance,  considered  it  as 
a  fundamental  maxim  of  government,  that  the  three 
great  Departments  should  be  kept  distinct,  so  that 
neither  of  them  should  exercise  the  powers  properly 
belonging  to  another.  But  without  taking  any  precau- 
tions to  preserve  this  principle  in  practice,  it  rendered 
the  Governor  dependent  upon  the  Legislature  for  his 
annual  existence  and  support.  The  result  was,  as  Mr. 
Jefferson  informs  us,  "  that  during  the  whole  session  of 
the  Legislature,  the  direction  of  the  Executive  by  that 
body  was  habitual  and  familiar."  ^ 

The  Constitution  of  Massachusetts  discovered  fnore 
wisdom,  and  afforded  the  first  example  of  a  constitu- 


1  Const.  U.  S.,  Art.  II.  Sect.  i.  7. 

2  Notes  on  Virginia. 


CONSTITUTIONAL  JURISPRUDENCE.  107 

tional  provision  for  the  support  of  the  Executive  Magis- 
trate, by  declaring  that  the  Governor  should  have  a 
salary  of  a  fixed  and  permanent  value,  amply  sufficient, 
and  established  by  standing  law.  Those  State  Consti- 
tutions which  have  been  made  or  amended  since  the 
adoption  of  the  Constitution  of  the  United  States,  have 
generally  followed  the  example  which  that  instrument 
happily  set  to  them  in  this,  as  well  as  in  many  other 
particulars ;  and,  it  has  been  weU  observed  by  one  of 
our  ablest  jurists,  that  "  we  may  consider  it  as  one  of 
the  most  signal  blessings  bestowed  on  this  country, 
that  we  have  such  a  fabric  as  the  Federal  Constitution 
constantly  before  our  eyes,  not  only  for  national  pro- 
tection, but  for  local  imitation  and  example.^ 

The  appointment  of  an  extraordinary  person  as  Vice- 
President  of  the  United  States,  and  ex-officio  President 
of  the  Senate,  was  originally  objected  to  as  superfluous, 
if  not  mischievous.  But  it  was  justified  principally  on 
two  considerations  ;  the  first  was,  that  to  secure,  at  all 
times,  a  definite  resolution  of  the  Senate,  it  was  neces- 
sary that  the  President  of  that  body  should  have  a 
casting  vote ;  and  to  take  a  Senator  firom  his  seat  as 
Senator,  and  place  him  in  that  of  the  presiding  officer, 
would  be,  in  regard  to  the  State  from  which  he  came, 
to  exchange  a  constant,  for  a  contingent  vote.  The 
other  consideration  was,  that  as  the  Vice-President  may 
occasionally  become  a  substitute  for  the  President  in 
the  supreme  Executive  office,  all  the  reasons  which 
recommend  the  mode  of  election  prescribed,  in  the  first 
instance,  for  the  one,  apply  with  great,  if  not  with  equal 
force  to  the  other. 

'  B7  Mr.  Chancellor  Kent,  in  his  "Commentaries." 


108  LECTURES   ON 

The  powers  and  duties  of  the  President  devolve,  as 
we  have  seen,  on  the  Vice-President,  not  only  when  no 
choice  is  made  by  the  Electors,  or  the  House  of  Repre- 
sentatives, but  also  in  case  of , the  President's  removal 
from  office,  or  of  his  death,  resignation,  or  inability  to 
discharge  his  duties ;  and  Congress  is  authorized  to 
provide  by  law  for  the  case  of  vacancies  in  the  offices 
of  both  President  and  Vice-President.^  In  pursuance 
of  this  power,  it  has  been  enacted  that  in  the  event  of 
such  vacancies,  the  President  of  the  Senate  pro  tempore^ 
and,  in  case  there  should  be  no  such  President  of  the 
Senate,  that  the  Speaker  of  the  House  of  Representa- 
tives for  the  time  being,  shall  act  as  President  of  the 
United  States  until  the  vacancy  be  supplied. 

The  evidence  of  a  refusal  to  accept,  or  of  a  resigna- 
tion of  the  office  of  President  or  Vice-President,  is 
declared  by  the  same  Act  of  Congress  to  be  a  declara- 
tion in  writing,  filed  in  the  office  of  the  Secretary  of 
State. 

As  it  might  become  a  question  who  would  be  the 
person  to  serve,  if  the  office  of  President  should  devolve 
on  the  Speaker  of  the  House  of  Representatives,  after 
the  Congress  for  which  the  last  Speaker  was  chosen 
had  expired,  and  before  the  new  Congress  has  met,  it 
is  usual  for  the  Vice-President  to  withdraw  from  the 
Senate  shortly  before  the  adjournment  of  the  session, 
in  order  to  afford  that  body  the  opportunity  to  choose  a 
President,  pro  tempore,  from  among  those  of  its  members 
whose  terms  of  service  continue  over  the  next  session 
of  Congress  ;  and  if  he  should  die  or  resign  during  the 
interval  or  recess,  and  a  casual  vacancy  occur  in  the 

1  Const.  U.  S.,  Art  II.  Sect.  i.  6. 


CONSTITUTIONAL  JURISPRUDENCE.  109 

offices  of  President  and  Vice-President,  the  former 
Speaker  would  probably  be  deemed  the  person  upon 
whom  the  office  was  intended  to  devolve.  If  the  Vice- 
President  succeed  to  the  office  of  President,  he  con- 
tinues in  it  until  the  expiration  of  the  term  for  which 
the  President  was  elected.  If  both  offices  are  vacant, 
it  is  made  the  duty  of  the  Secretary  of  State  to  take 
measures  under  the  Act  of  Congress,  for  the  election  of 
a  President.  But  as  that  Act  was  passed  before  the 
amendment  of  the  Constitution,  directing  the  Electors 
to  vote  separately  for  the  President  and  Vice-President, 
and  as  that  amendment  omitted,  perhaps  intentionally, 
to  provide  for  the  case,  a  Vice-President  cannot  be 
elected,  in  the  event  of  a  vacancy  in  that  office,  until 
the  next  regular  period.' 

In  addition  to  all  the  other  precautions  to  prevent 
abuse  in  the  Executive  trust,  in  the  mode  of  the  Presi- 
dent's appointment,  in  the  limitation  of  his  term  of 
office,  and  in  the  precise  and  definite  restrictions  on 
the  exercise  of  his  powers,  the  Constitution  provides 
that,  before  he  enter  on  the  execution  of  his  office,  he 
■  shall  take  an  oath  or  affirmation  faithfully  to  execute 
the  same ;  and,  to  the  best  of  his  abUity,  to  preserve, 
protect,  and  defend  the  Constitution  ;  and  it  renders 
him  amenable  to  justice  for  mal-administration.^  The 
President,  as  well  as  all  other  officers  of  the  Govern- 
ment, may  be  impeached,  as  we  have  seen,  for  treason, 
bribery,  and  other  high  crimes  and  misdemeanors,  and, 
upon  conviction,  removed  from  office. 

^  Const.  U.  S.,  Art.  II.  Secti.  6.  Amend.  XII.  Mr.  Justice  Story, 
in  his  Commentaries,  §§  14-77,  hints  a  doubt,  whether  the  Act  in 
question  be  constitutional. 

2  Const.  U.  S.,  Art.  II.  Sect.  ii.  8,  and  Ihkl.  Sect.  iv. 

10 


110  LECTURES   ON 

The  inviolability  of  the  Supreme  Magistrate,  as  main- 
tained in  the  English  law,  is  incompatible  with  the 
theory  of  our  government,  as  well  as  with  the  principles 
of  retributive  justice;  and  if  neither  the  sense  of  duty, 
the  force  of  public  opinion,  nor  the  transitory  nature  of 
his  power,  prove  sufficient  to  secure  the  faithful  dis- 
charge of  the  Executive  office, — if  a  President  of  the 
United  States  wiU  use  the  authority  of  his  station  to 
violate  the  Constitution  and  laws,  even  he,  as  easily 
and  as  promptly  as  any  subordinate  officer,  may  be 
arrested  in  his  course  by  an  impeachment. 

Considering  the  nature  and  extent  of  the  authority 
necessarily  incident  to  the  station,  it  was  difficult  to 
constitute  the  office  of  President  so  as  to  render  it 
equally  safe  and  efficient,  by  combining,  in  the  struc- 
ture of  its  power,  a  due  proportion  of  energy  and 
responsibility.  The  former  is  necessary  to  maintain  a 
firm  administration  of  the  laws  ;  the  latter,  to  preserve 
inviolate  the  rights  of  the  People  and  of  the  States. 
"  The  authors  of  the  Federal  Constitution,"  says  the 
eminent  jurist  I  have  so  frequently  quoted,  "  appear  to 
have  surveyed  these  two  objects  with  profound  discern- 
ment, and  have  organized  the  Executive  Department 
with  consummate  skill."  ^ 

'  2  Kent's  Comm.  Part.  2tl,  Sect.  13. 


CONSTITUTIONAL  JURISPRUDENCE.  Ill 


LECTURE  V. 


OF   THE   JUDICIAL  POWER. 


As  the  personal  security  and  private  property  of 
every  individual  depend  on  the  wisdom,  stability,  and 
integrity  of  the  Courts  of  Justice,  the  Judicial  power 
interferes  more  directly  and  uniformly  than  either  of 
the  other  departments,  with  all  the  concerns  of  social 
and  private  life.  No  Government  can  be  complete  in 
its  form,  or  perfect  in  its  principles  of  organization, 
without  this  power.  To  make  laws  and  execute  them, 
are  the  respective  objects  of  the  other  two  departments, 
and  are,  indeed,  the  two  principal  operations  of  govern- 
ment. But  laws  cannot  be  fully  and  correctly  executed 
unless  there  be  a  power  in  the  State  to  expound  and 
apply  them.  This  power  being  auxiliary  to  the  Execu- 
tive authority,  partakes,  in  some  degree,  of  its  nature. 
But  its  office  is,  in  some  cases,  to  control  the  exercise 
of  Executive  power ;  and  those  acts  of  the  latter,  which- 
are  judicially  declared  to  be  unconstitutional  or  unlaw- 
ful, are  thereby  rendered  inoperative  and  void.  The 
Judicial  department  may  also  be  said  to  participate  in 
the  Legislative  power,  a^  its  construction  of  Legislative 
acts  is  binding  and  conclusive  ;  although  this  does  not 
prevent  the  Legislature  from  repairing  defects,  or  ex- 
plaining ambiguities,  by  subsequent  laws  operating  on 
subsequent  cases. 


112  LECTUEES   ON 

A  higher  function,  moreover,  appertains  to  this  de- 
partment, under  a  written  Constitution,  founded  upon 
true  principles  of  representation,  and  establishing  a  just 
separation  of  the  three  branches  of  Government,  and 
that  is,  to  expound  the  Constitution,  and  thereby  test 
the  validity  of  the  acts  of  the  Legislature,  as  well  as 
those  of  the  Executive  department,  in  all  cases  where 
the  question  as  to  their  construction  arises  in  a  suit  at 
law  or  in  equity.  Hence  the  more  imperious  and  abso- 
lute necessity  of  securing,  by  fundamental  provisions, 
the  independence  of  the  Judicial  power.  A  Constitu- 
tion which  omitted  to  establish  an  adequate  Judicial 
power,  could  not  successfully  be  carried  into  effect ;  and 
if,  instead  of  being  rendered  independent,  that  power 
be  united  with  one  or  both  of  the  other  departments,  or 
if  those  charged  with  its  administration  were  made 
dependent  on  either  of  them,  its  dignity  and  utility 
would  be  destroyed. 

The  Judicial  power  in  every  government  must  be 
coextensive  with  the  power  of  legislation.  Were  there 
no  power  to  interpret,  pronounce,  and  enforce  the  laws, 
the  Government,  if  it  did  not  perish  by  its  own  weak- 
ness, would  be  corrupted  by  the  usurpation  of  new 
powers  by  the  Legislature,  to  the  subversion  of  public 
liberty.  But  the  Judicial  authority  cannot,  by  the  force 
of  language,  be  made  to  exceed  the  Legislative  power, 
for  such  excess  would  be  inconsistent  with  its  nature  ; 
and  if,  by  express  terms,  it  should,  on  the  other  hand, 
be  so  restricted  as  to  embrace  a  part  only  of  the  subjects 
of  actual  legislation,  the  integrity  and  efficiency  of  the 
whole  system  would,  in  proportion,  be  materially  im- 
paired. The  Constitution,  therefore,  establishes  the 
Judicial  power  as  a  substantive,  integral,  and  indepen- 


CONSTITUTIONAL  JURISPRUDENCE.  118 

dent  branch  of  the  Government ;  and  this  was  the  more 
necessary,  from  the  extraordinary  complications  of  the 
authority  of  the  United  States  with  that  of  the  several 
States,  resulting  unavoidably  from  the  nature  of  the 
Federal  Union.  The  Judicial  power  of  the  National 
Government  is  accordingly  vested  "in  one  Supreme 
Court,  and  in  such  Inferior  Courts  as  Congress  may, 
from  time  to  time,  ordain  and  establish."  ^  A  Chief 
Justice  is  recognized  in  the  article  which  provides  that 
when  the  President  shall  be  impeached,  "  the  Chief  Jus- 
tice "  shall  preside  at  the  trial ;  and  the  existence  of 
other  Judges  is  contemplated  by  the  provision  which 
prescribes  the  manner  of  their  appointment.  The  com- 
plete organization,  however,  of  the  Supreme  Court,  as 
well  as  the  establishment  of  inferior  and  subordinate 
Courts,  is  provided  for  by  statute. 

In  the  survey  which  I  propose  to  take  of  this  interest- 
ing and  important  branch  of  the  Federal  Government, 
I  shall  consider,  First,  the  manner  in  which  it  is  consti- 
tuted ;  and  Secondly,  the  extent  and  distribution  of  its 
authority.  The  first  point  embraces  these  several  ob- 
jects, viz  :  The  mode  in  which  the  Judges  of  the  several 
Courts  of  the  United  States  are  appointed;  the  tenure 
by  which  they  hold  their  offices  ;  the  provision  for  their 
support;  and  the  precautions  to  secure  their  responsi- 
bility. 

I.  The  manner  in  which  the  Judicial  power  of  the 
United  States  is  constituted ;  and  1st.  As  to  the  mode 
in  which  the  Judges  are  appointed. 

The  mode  of  appointing  public  officers,  by  the  Presi- 
dent and  Senate,  I  have  already  spoken  of  as  generally 

1  Const.  U.  S.,  Art.  III.  Sect.  i. 

10* 


114  LECTURES   ON 

advantageous ;  and  it  seems  peculiarly  fit  and  proper 
with  respect  to  the  Judicial  department  The  just  and 
vigorous  investigation  and  punishment  of  every  species 
of  fraud  and  violence,  and  the  compelling  every  man 
punctually  to  fulfil  his  contracts,  are  duties,  not,  certainly, 
of  the  most  popular  character,  although  their  faithful 
discharge  will  always  command  the  approbation  of  the 
candid  and  judicious.  The  fittest  men  would  probably 
possess  too  much  reserve,  and  too  much  severity  of 
morals,  to  secure  an  election  depending  on  universal 
suffrage ;  nor  would  the  mode  of  appointment  by  a 
large  deliberative  assembly  be  entitled  to  unqualified 
approbation.  There  are  too  many  occasions,  and  too 
many  temptations  for  intrigue  and  the  operation  of 
party  prejudices,  and  too  much  scope  for  the  interfer- 
ence of  local  interests  to  permit  such  a  body  to  act,  in 
such  cases,  with  a  sufficiently  single  and  steady  regard 
for  the  public  welfare. 

2.  The  Judges,  both  of  the  Supreme  and  inferior 
Courts,  hold  their  offices  during  good  behavior.  This 
tenure,  as  a  standard  for  the  duration  and  continuance 
in  office  of  the  Judicial  Magistracy,  is  considered  by 
the  authors  of  "  The  Federalist,"  ^  as  "  one  of  the  most 
valuable  of  modern  improvements  in  the  practice  of 
government.  In  a  Monarchy,  it  is  a  necessary  barrier 
against  the  despotism  of  the  Prince.  In  a  Republic,  it 
is  no  less  essential  as  a  defence  against  the  encroach- 
ments of  the  Executive  and  Legislative  powers  ;  and 
it  is  the  best  expedient  that  can  be  devised,  in  any 
Government,  to  secure  a  steady,  upright,  and  impartial 
administration  of  the  laws."     This  principle,  which  has 

^  No.  78,  by  Mr.  Hamilton. 


CONSTITUTIONAL  JUEISPRUDENCE.  115 

been  the  subject  of  much  deserved  eulogy,  is  one  of 
the  many  benefits  derived  from  the  land  of  our  fore- 
fathers, where  the  Judges  anciently  held  their  seats  at 
the  pleasure  of  the  Crown,  as  does  the  Chancellor  to 
this  day.  It  is  easy  to  conceive  what  a  dangerous  influ- 
ence this  must  have  given  to  the  King  in  the  adminis- 
tration of  justice  in  those  cases  where  the  claims  or 
pretensions  of  the  Government  were  made  to  bear  on 
the  rights  of  a  private  individual.  And,  although  in 
the  reign  of  James  I.,  the  Barons  of  the  Exchequer, — 
the  Court  in  which  jurisdiction  is  taken  of  all  matters 
relative  to  the  revenues  and  property  of  the  Crown, — 
were  created  during  good  behavior ;  and,  although  the 
commissions  of  the  other  Judges  were  made  so  to  run 
at  the  restoration  of  Charles  II.,  it  still  remained  at  the 
pleasure  of  the  Crown  to  prescribe  the  form  of  the  com- 
mission, until  the  statute  of  William  and  Mary  estab- 
lished the  commissions  of  all  the  Common  Law  Judges 
to  be  quam  din  bene  se  gesserint.  The  excellence  of 
this  provision  has  recommended  its  adoption  by  other 
nations  of  Europe,  and  it  prevails  in  many  of  our  State 
Constitutions ;  but  in  some,  under  modifications  more 
or  less  extensive  and  injurious. 

Whoever  attentively  considers  the  different  depart- 
ments of  power,  must  perceive  that  in  a  Government  in 
which  they  are  separated  from  each  other,  the  Judiciary, 
from  the  nature  of  its  functions,  will  always  be  the 
least  dangerous  to  the  political  rights  secured  by  the 
Constitution,  because  it  wiU  have  the  least  capacity  to 
invade  or  injure  them.  The  Executive  power  not  only 
dispenses  the  honors,  but  wields  the  sword  of  the  com- 
munity. The  Legislature  not  only  holds  the  public 
purse,  but  prescribes  the  rules  by  which  the  rights  and 


116  LECTURES   ON 

duties  of  every  citizen  are  to  be  enjoyed  and  regulated. 
But  the  Judicial  power  has  no  command  over  the 
sword  or  .the  purse ; — no  direction,  either  of  the  strength 
or  the  wealth  of  the  society,  and  can  take  no  active 
resolution  whatsoever.  It  has  been  truly  and  emphati- 
cally said  to  have  "  neither  force  nor  will,  but  merely 
judgment ; "  *  and  even  for  the  practical  exercise  of  this 
faculty,  it  must  depend  on  the  protection  and  support 
of  the  Executive  arm.  This  view  of  the  subject  shows, 
in  the  first  place,  that  the  Judicial  is,  beyond  all  com- 
parison, the  weakest  of  the  three  departments  of  power ; 
that  it  can  never  attack,  with  success,  either  of  the 
others ;  and  that  all  possible  care  is  required  to  defend 
it  from  attacks  by  them.  It  also  shows  that,  although 
individual  oppression  may,  now  and  then,  proceed  from 
the  Courts  of  Justice,  yet  the  general  liberty  of  the 
People  can  never  be  endangered  from  that  quarter, —  so 
long  as  the  Judicial  remains  truly  distinct  from  the 
Legislative  and  Executive  powers ;  and  lastly,  it  shows, 
as  a  consequence  of  these  previous  deductions,  and 
bearing  immediately  upon  the  point  we  are  considering, 
that  nothing  can  contribute  so  much  to  the  firmness 
and  independence  of  the  Judicial  power,  as  permanency 
in  office.  This  quality,  therefore,  may  justly  be  re- 
garded as  an  indispensable  ingredient  in  its  constitu- 
tion, and  as  rendering  it  the  great  security  of  public 
justice,  liberty,  and  safety. 

3.  In  addition  to  the  tenure  by  which  the  Judges 
hold  their  offices,  the  permanent  provision  for  their 
support  is  admirably  adapted  to  secure  their  independ- 
ence.    It  tends,  also,  to  secure  a  succession  of  learned 

1  "  The  Federalist,"  No.  78. 


CONSTITUTIONAL  JURISPBUDENCE.  117 

men  for  the  bench,  who,  in  consequence  of  a  certain 
fixed  support,  are  induced  to  relinquish  the  lucrative 
pursuit  of  their  practice  at  the  bar,  for  the  duties  of  a 
more  important  and  honorable  station.  The  Constitu- 
tion declares,  on  this  subject,  that  all  the  Judges  of  the 
United  States  "  shall,  at  stated  times,  receive  for  their 
services,  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office  ; "  ^  and  this  provision 
was  considered  an  improvement  upon  the  previously 
existing  Constitutions  of  the  States.  It  was  ordained 
in  the  Constitution  of  Massachusetts,  that  permanent 
and  honorable  salaries  should  be  established  by  law  for 
the  Judges.  But  this  was  not  sufficiently  precise  and 
definite,  and  the  more  certain  provision  in  the  Federal 
Constitution  has  been  wisely  followed  in  the  subse- 
quent Constitutions  of  several  of  the  individual  States. 
The  complete  and  perfect  independence  of  the  Ju- 
diciary is  peculiarly  requisite  in  a  limited  Constitution 
like  that  of  the  United  States,  which  contains  certain 
specific  restrictions  upon  the  Legislative  authority  both 
of  the  Federal  and  State  Governments,  such,  for  in- 
stance, as  that  "  Congress  shall  pass  no  bUls  of  attainder, 
or  ex  post  facto  law,"  and  that  "  no  State  shall  coin 
money,  emit  bills  of  credit,  or  pass  laws  impairing  the 
obligation  of  contracts."  Limitations  of  neither  of 
these  kinds  can  be  preserved  in  practice  in  any  other 
way  than  through  the  instrumentality  of  Courts  of  Jus- 
tice; and  it  is  a  wise  and  necessary  principle  of  our 
Government,  as  I  shall  show  more  fully  hereafter,  that 
the  Acts  both  of  the  Federal  and  State  Legislatures 
are  subject  to  the  severe  scrutiny  and  impartial  inter- 

1  Const.  U.  S.,  Art.  III.  Sect.  i. 


118  LECTURES   ON 

pretation  of  tribunals  who  are  bound  to  regard  the 
Constitution  as  the  paramount  law,  and  the  highest 
evidence  of  the  will  of  the  People ;  and,  consequently, 
to  declare  void  all  acts  contrary  to  its  tenor.  Without 
this  power,  not  only  all  the  limitations  and  restrictions 
such  as  I  .have  specified,  but  all  the  reservations  of 
rights  and  privileges,  either  to  the  several  States,  or 
their  individual  citizens,  would  be  ineffectual  and  nu- 
gatory. 

4.  But  while  the  Constitution  has  thus  rendered  the 
Federal  Courts  independent  of  undue  influence  from 
the  other  departments  of  the  Government,  it  has  adopted 
a  precaution  for  their  responsibility,  by  rendering  them 
amenable  for  any  corrupt  violation  of  their  trust ;  and 
the  Judges  of  the  United  States  may  be  held  to  answer 
upon  an  impeachment ;  and,  if  convicted,  they  may  be 
removed  from  the  bencb^  and  be  disqualified  from  hold- 
ing any  office  in  the  Government.  This,  perhaps,  is  the 
only  provision  consistent  with  the  necessary  independ- 
ence of  the  Judicial  character  in  a  Government  of  the 
complex  nature  of  that  of  the  United  States,  and  is 
the  only  one  to  be  found  relative  to  the  subject  in  the 
Constitution. 

The  want  of  a  provision  for  removing  the  Judges  on 
account  of  inability,  or  upon  the  address  of  the  Legis- 
lature, which  exists  not  only  in  England,  but  in  some 
of  the  States  of  this  Union,  afforded  ground  of  objec- 
tion when  the  Federal  Constitution  was  under  discus- 
sion in  the  State  Conventions.  But  the  most  wise  and 
considerate  men  of  that  period  believed  that  such  a 
provision  could  not  be  reduced  to  practice,  or,  in  a 
Government  like  ours,  would  be  more  liable  to  abuse 
than   productive  of  good   consequences.     A  provision 


CONSTITUTIONAL  JUKISPKUDENCE.  119 

similar  to  that  in  the  first  Constitution  of  New  York, 
which  limited  the  duration  of  the  highest  Judicial 
officers  to  the  age  of  sixty  years,  was  also  complained 
of  as  an  omission  in  the  Federal  Constitution ;  but  it 
was  admirably  replied  by  Mr.  Hamilton,' — one  of  the 
ablest  and  most  illustrious  defenders  of  that  instrument, 
that  "  in  a  Republic  where  fortunes  are  not  affluent,  and 
pensions  not  expedient,  the  dismission  of  men  from 
stations  in  which  they  have  served  their  country  long 
and  usefully, —  on  which  they  depend  for  subsistence, 
and  from  which  it  will  be  too  late  to  resort  to  any 
other  occupation,  should  have  some  better  apology  to 
humanity  than  is  to  be  found  in  the  imaginary  danger 
of  a  superannuated  bench." 

11.  The  Federal  Judiciary  being  established,  as  I 
have  explained,  on  principles  essential  to  maintain  that 
department  in  a  proper  state  of  independence,  and  to 
secure  a  pure  and  vigorous  administration  of  the  law, 
the  Constitution  proceeds  to  designate  the  objects  of  its 
jurisdiction.  It  extends  the  Judicial  power  of  the  Union 
to  all  cases  in  Law  and  Equity,  arising  under  the  Consti- 
tution and  laws  of  the  United  States,  and  treaties  made 
under  their  authority ;  to  all  cases  affecting  Ambassadors, 
other  public  Ministers,  and  Consuls ;  ^  to  all  cases  of 
Admiralty  and  Maritime  Jurisdiction ;  ^  to  controversies 
to  which  the  United  States  are  a  party ;  to  controversies 
between  two  or  more    States;   between  a  State  when 

1  In  "The  Federalist,"  No.  79. 

2  A  State  Court  cannot  claim  jurisdiction  of  civil  suits  against 
foreign  Consuls.     7  Peters,  276. 

3  But  the  grant  of  this  jurisdiction  does  not  take  away  the  authority 
of  the  several  States  to  regulate  their  fisheries,  and  punish  those  who 
violate  such  regulations.    4  Washington  C.  C.  383. 


120  LECTURES   ON 

plaintiff  and  citizens  of  another  State ;  between  citizens 
of  the  same  State^  claiming-  lands  under  grants  from 
different  States;  and  to  controversies  between  citizens 
of  the  United  States,  and  foreign  States,  citizens,  or 
subjects.^ 

A  citizen  of  one  State  having  title  to  lands  in  another, 
is  not  disabled  from  suing  for  those  lands  in  the  Courts 
of  the  United  States  by  the  fact  that  he  derives  his 
title  from  a  citizen  of  the  State  in  which  the  lands  Me? 
And  if  the  controversy  is  founded  on  conflicting  grants 
of  different  States,  the  Judicial  power  of  the  Federal 
Courts  extends  to  the  case.^  A  citizen  of  one  State 
has  a  right  to  sue  upon  the  bond  of  a  Sheriff"  of  another, 
and  to  use  the  name  of  the  Governor  to  whom  the  bond 
is  given,  although  the  parties  to  the  bond,  the  Sheriff", 
and  the  Governor  are  all  citizens  of  the  same  State, 
provided  the  parties  for  whose  use  the  suit  is  brought  is  a 
citizen  of  a  diff"erent  State.*  A  citizen  of  one  State 
can  sue  a  Corporation  which  has  been  created  by,  and 
transacts  business  in  another, — the  suit  being  brought 
in  the  latter, —  although  some  of  the  members  of  the 
Corporation  are  not  citizens  of  the  State  in  which  the 
suit  is  brought,  and  although  the  State  itself  may  be  a 
member  of  the  corporation.^ 

As  the  Constitution  originally  stood,  the  Judicial 
power  of  the  United  States  extended  to  suits  prosecuted 
against  an  individual  State  by  a  citizen  of  another 
State  of  the  Union,  or  by  citizens  or  subjects  of  any 

1  Const.  U.  S.,  Art.  III.  Sect.  ii.  1. 

2  1  Peters,  263. 

3  1  IFAea/on,  415;  3  Condensed  Rep.  b^fi. 

4  2  Howard,  9. 

5  Ibid.  497. 


CONSTITUTIONAL  JURISPRUDENCE.  121 

foreign  State.  The  States,  however,  were  not  willing 
to  be  arraigned  as  defendants  before  the  Federal  Courts, 
at  the  instance  of  private  persons ;  —  and  it  was  subse- 
quently declared  by  an  Amendment,  that  the  Judicial 
power  of  the  United  States  should  not  be  construed  to 
extend  to  any  suit  of  law  or  equity  commenced  or 
prosecuted  against  one  of  the  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign 
State.i 

The  object  of  this  Amendment  was  to  inhibit  the 
commencement  or  prosecution  of  a  suit  against  a  State 
by  the  citizens  of  another  State,  or  the  subjects  of  a 
foreign  power.  Where  the  record  of  a  judgment  ob- 
tained by  a  State,  in  its  own  courts,  against  an  indi- 
vidual, is  removed  to  the  Supreme  Court  of  the  United 
States,  by  writ  of  error,  for  the  purpose  of  examining 
the  question — Whether  that  judgment  be  in  violation  of 
the  Federal  Constitution,  or  a  law  of  Congress,  and  not 
for  the  purpose  of  asserting  a  claim  or  dema,nd  against 
the  State,  it  is  not  embraced  by  the  prohibition  of  this 
Amendment.  For  a  writ  of  error  is  only  in  the  nature 
of  a  suit  or  action  where  the  object  is  to  restore  the 
possession  of  something  withheld  from  the  party  obtain- 
ing it,  and  not  where  its  operation  is  wholly  defensive.^ 

A  motion  to  dismiss  a  cause  pending  in  a  Court  of 
the  United  States,  for  want  of  jurisdiction,  may  be 
made  at  any  stage  of  the  proceedings.  It  is  not  analo- 
gous to  a  plea  to  the  jurisdiction  of  a  Court  of  Law,^ 
or  Equity,  in  England,  where  the  Superior  Courts  have 
a  general  jurisdiction  over  all  persons  within  the  realm, 

^  Amendments  Const.  U.  S.,  XI. 
2  6  Wheat.  264  ;  5  Cond.  Rep.  90. 
11 


122  LECTURES   ON 

and  all  causes  of  action  between  them.  The  rule  pre- 
vailing there,  in  reference  to  a  Court  of  general  jurisdic- 
tion, is,  that  a  party  claiming  exemption  from  its  process, 
must  set  out  the  reason  by  a  special  plea  in  abatement, 
and  show  that  some  inferior  Court  of  Law  or  Equity 
has  exclusive  cognizance  of  the  case;  otherwise,  the 
Superior  Court  must  proceed  in  virtue  of  its  general 
jurisdiction ;  but  as  the  Courts  of  the  United  States 
are  of  a  special  and  limited  original  jurisdiction,  their 
action  must  be  confined  to  the  particular  cases,  contro- 
versies, and  parties,  over  which  the  Constitution  and 
laws  have  authorized  them  to  act, — any  proceeding 
without  the  limits  prescribed,  is  coram  non  judice,  and 
their  action  a  nullity ;  and  wherever  the  want  of  power 
is  objected  to  by  a  party,  or  is  apparent  to  the  Court,  it 
must  surcease  its  action,  or  proceed  extra-judicially.^ 

Nor  can  the  local  laws  of  the  States  confer  jurisdic- 
tion on  the  Courts  of  the  United  States.  They  can 
only  furnish  rules  to  ascertain  the  rights  of  parties ;  and 
thus  assist  in  the  administration  of  the  proper  remedies 
where  the  jurisdiction  is  vested  by  the  laws  of  the 
United  States.^  Neither  can  State  laws  confer  any 
authority  upon  the  Federal  Courts  in  the  exercise  of 
their  jurisdiction,  by  the  use  of  State  process  to  reach 
persons  or  property  which  could  not  be  reached  within 
the  meaning  of  the  law  establishing  the  jurisdiction.^ 

The  propriety  of  vesting  the  jurisdiction,  as  it  now 
stands,  in  the  Judicial  department  of  the  United  States, 
seems  to  result  necessarily  from  their  union  as  one 
nation ;  and  its  exercise  by  the  national  tribunals  may 
be  considered  requisite  to  the  existence  of  the  Federal 

1  12  Peters,  657.  a  11  Ibid.  175.  3  12  Ibid.  300. 


CONSTITUTIONAL  JURISPEUDENCE.  123 

Government.  It  may  be  profitable,  however,  at  the 
present  moment,  to  view  this  branch  of  our  subject 
somewhat  in  detail,  in  particular  reference  to  questions 
arising  under  the  Constitution  and  laws  of  the  United 
States. 

The  fitness  of  extending  the  jurisdiction  of  the  Fed- 
eral Courts  to  cases  arising  under  the  Constitution,  in 
contradistinction  to  those  arising  under  the  laws  passed 
in  virtue  of  its  authority,  results  from  the  obvious  neces- 
sity of  a  constitutional  method  of  giving  efficacy  to 
those  provisions  of  the  national  compact  which  neither 
require  nor  admit  of  an  act  on  the  part  of  the  national 
legislature  to  sanction  or  enforce  them.  What,  indeed, 
would  avail  the  restrictions  on  the  States,  without  some 
constitutional  mode  of  compelling  their  observance  ? 
The  individual  States  are  prohibited,  for  instance,  from 
the  performance  of  a  variety  of  acts,  some  of  which 
are  incompatible  with  the  objects  and  interests  of  the 
Union,  and  others  with  the  principles  of  good  policy. 
The  imposition,  by  State  authority,  of  duties  on  im- 
ported articles,  is  an  example  of  the  first,  and  the 
emission  of  bills  of  credit,  a  specimen  of  the  second. 
Now,  in  the  face  of  the  experience  afforded  under  the 
former  Confederation,  it  will  hardly  be  pretended  that 
such  prohibitions  would  be  scrupulously  regarded  with- 
out some  effectual  power  in  the  General  Government 
to  restrain  or  correct  their  violation.  The  power  must 
be  either  a  direct  negative  on  the  State  laws  vested  in 
the  Executive  authority  of  the  Union,  (which,  indeed, 
was  proposed  as  the  alternative  in  the  General  Con- 
vention,) or  an  authority  in  the  Federal  Courts,  to 
overrule  such  laws  of  the  several  States  as  contravene 


124  LECTURES   ON 

the  National  Constitution.^  The  latter  expedient  was 
preferred  by  the  Convention,  and  was,  unquestionably, 
most  acceptable  to  their  constituents ;  and  there  is  no 
third  course  that  can  be  imagined  short  of  the  modern 
heresy  of  nullification^  which  assumes  a  power  in  any 
one  State,  to  suspend,  if  not  to  subvert,  within  its  own 
limits,  the  acts  and  operations  of  every  department  of 
the  Federal  Government,  although  every  other  member 
of  the  Union  admit  their  validity,  and  submit  to  their 
authority. 

As  to  extending  the  jurisdiction  of  the  National 
Courts  to  all  cases  arising  under  the  laws  of  the  United 
States,  it  seems  impossible,  by  any  argument  or  illus- 
tration, to  render  its  propriety  clearer  than  it  appears 
from  the  mere  statement  of  the  question.  If  there  be 
such  things  as  political  axioms,  or  truths  in  the  science 
of  government  too  plain  to  be  disputed,  the  principle 
already  stated,  that  "  the  Judicial  power  must  be  coex- 
tensive with  the  power  of  legislation,"  must  certainly 
be  one  of  them ;  and  in  Governments  formed  from  the 
union  of  the  People  of  so  many  separate  and  indepen- 
dent States,  as  well  as  of  those  States  themselves,  as 
one  Nation,  organized  under  a  written  compact,  the 
mere  necessity  of  uniformity  in  the  interpretation  of 
the  national  laws  is  sufficient  to  decide  the  question. 

1  It  has  accordingly  been  held  by  tbe  Supreme  Court,  that  its 
exposition  of  the  Federal  Constitution  is  conclusive  upon  the  State 
Courts.  3  Marsh.  423  ;  8  Pick.  196 ;  6  Conn.  493 ;  3  Binn.  84  ;  6 
Ihid.  272  ;  3  Monr.  55  ;  5  Ihid.  294.  But  it  seems  it  has  no  authority 
on  a  writ  of  error  from  a  State  Court  to  declare  a  State  law  void  by 
reason  of  its  collision  with  the  Stale  Constitution.  3  Peters,  289  ; 
2  How.  236  ;  4  Gill  Sf  Johns.  519. 


CONSTITUTIONAL  JURISPRUDENCE.  125 

If  the  Courts  of  the  United  States  have  not  this  para- 
mount jurisdiction,  it  must  remain  without  control  in 
the  tribunals  of  the  States;  and  between  thirty  and 
forty  independent  judicatures,  with  final  jurisdiction 
over  the  same  kind  of  causes,  arising  under  the  same 
laws,  would  present  a  monstrous  anomaly  in  judicial 
organization  and  procedure,  from  which  nothing  but 
contradiction  and  confusion  could  ensue. 

The  People  of  the  United  States  have  declared  that 
the  Constitution,  laws,  and  treaties  of  the  United  States 
shall  be  the  supreme  law  of  the  land,  and  that  the 
Judges  in  every  State  shaU  be  bound  by  them,  "  any 
thing  in  the  Constitution  and  laws  of  any  State  to  the 
contrary  notwithstanding."^  Congress,  no  more  than 
the  State  Legislatures,  have  power  to  pass  laws  re- 
pugnant to  the  Federal  Constitution,  because  that 
Constitution  is  not  only  the  paramount,  but  also  the  fun- 
damental law ;  and  those  laws,  only,  which  are  passed 
in  pursuance  of  the  Constitution,  are  declared  to  be 
supreme  in  reference  to  the  Constitutions  and  laws  of 
the  several  States.  Every  act,  therefore,  of  Congress,  as 
well  as  of  the  State  Legislatures,  and  every  part  of  the 
Constitution  of  any  State,  which  is  repugnant  to  the 
Constitution  of  the  United  States,  is  necessarily  void. 
This  we  must  regard  as  a  clear  and  settled  principle 
of  our  National  Jurisprudence, — unalterable  by  any 
authority  but  that  from  which  the  National  compact  is 
derived  ;  and  not  liable  to  any  change,  even  by  that 
authority,  except  in  the  mode  prescribed  by  the  instru- 
ment itself.  Now,  as  the  Judicial  power  of  the  Union 
is  declared  to   extend  to  all  cases   arising  under  the 

^  Const.  U.  S.,  Art.  VI.  2. 
11* 


126  LECTURES   ON 

Constitution,  to  that  power  it  must  necessarily  belong, 
in  cases  where  the  question  is  judicially  presented  for 
decision,  to  determine  what  is  the  Supreme  Law ;  and 
the  judgment  of  the  Federal  Supreme  Court  must  be 
final  and  conclusive,  because  the  Constitution  invests 
that  tribunal  with  the  power  to  decide,  and  gives  no 
appeal  from  its  decision.  If  an  Act  of  Congress  be 
repugnant  to  the  Constitution,  it  is  ipso  facto  void  ;  and 
the  Courts  have  the  power,  and  it  is  their  duty  so  to 
declare  it.  But  if  it  admit  of  two  interpretations,  one 
of  which  brings  it  within,  and  the  other  presses  it  be- 
yond the  constitutional  authority  of  Congress,  it  is  the 
duty  of  the  Courts  to  adopt  the  former  construction, 
because  a  presumption  ought  never  to  be  indulged  that 
Congress  meant  to  exercise  or  usurp  any  unconstitu- 
tional authority.  Nor  will  the  Courts  ever  pronounce 
an  Act  of  Congress  void,  except  in  a  very  clear  case.^ 

1  For  cases,  both  in  the  Federal  and  State  Courts,  in  which  Acts 
of  Congress  and  State  Constitutions  and  laws  have  been  declared  void 
as  against  the  Constitution,  laws,  or  treaties  of  the  United  States,  see 
2  Peters,  522 ;  12  Wheat.  270 ;  3  Dall.  309 ;  4  Ibid.  18  ;  6  Crunch,  128 
Charlt.  175;  Ibid.  235  ;  Walker,  146;  1  Black/.  206  ;  1  Breese,  209 
Ibid.  70;  2  Porter,  303 ;  1  Marsh.  290 ;  2  Litt.  90  ;  Pr.  Dee.  64 ;  Ibid. 
89  ;  4  Monr.  43;    1  Hayw.  28  ;  Ibid.  272;   Cooke,  217  ;   4  Yerg.  202 

9  Ibid.  490  ;  1  Rep.  Const.  C.  267  ;  3  Desauss.  476  ;  1  McCord,  238 
Harper,  385 ;  1  Car.  Law  Rep.  246  ;    1  Murphy,  58 ;  6  Rand.  245 
1  Virg.  Cos.  20;  1  £inn.491;  b  Ibid.Z5b;  2  Feaies, 493;  2  Pennsyl 
184;  3  Serg.  ^  Raw.  169  ;  19  Johns.  Rep.  58;  1  Cowen,  550;  1  South 
192  ;  2  Ibid.  466  ;  1  liar.  §•  /,  236  ;  7  Gill  §•  Johns.  7  ;    1  Ibid.  463 

10  Conn.  522;  4   Ibid.  225;  3  Verm.  507;  1  Chip.  237;  Ibid.  257 
1  Aick.  314;  3  N.  H.  473;  4  Ibid.  16;  7  Ibid.  65;  3  Greenl.  326 
4   Ibid.  140;  6  Ibid.U2;  Ibid.  112;  9  Ibid.  60;  2  Fairf.  118;  11 
Mass.  396 ;  15  Ibid.  447 ;  7  Pick.  460  ;  13  Ibid.  60.     So  also  Statutes 
which  violate  the  plain  and  obvious  principles  of  common  right,  and 
common  reason, « have  been  declared  by  the  Courts  to  be  null  and 


CONSTITUTIONAL  JURISPRUDENCE.  127 

Some  perplexity,  indeed,  existed  at  first,  in  regard  to 
the  rights  of  Courts  of  Justice  to  pronounce  Legislative 
acts  void  on  the  ground  of  their  repugnancy  to  the 
Constitution.  It  arose  from  apprehension  that  the  doc- 
trine would  establish  a  superiority  of  the  Judicial,  over 
the  Legislative  power ;  and  notwithstanding  the  numer- 
ous cases  above  referred  to  in  support  of  the  principle, 
difficulties,  at  least,  if  not  doubts  on  this  subject,  have 
been  since  revived  in  some  of  the  States,  and  among 
a  particular  class  of  politicians.  The  question,  there- 
fore, having  of  late  assumed  great  practical  importance, 
a  rapid  survey  of  the  grounds  on  which  the  affirmative 
was  maintained  by  some  of  the  most  eminent  of  the 
statesmen  who  framed  the  Constitution,  cannot  be  dis- 
advantageous or  misplaced,  especially  as  it  exhibits  a 
contemporaneous  construction  of  that  part  of  the  instru- 
ment of  the  highest  authority. 

"  There  is  no  position,"  say  the  illustrious  authors  of 
"  The  Federalist,"  "  which  depends  on  clearer  princi- 
ples, than  that  every  act  of  a  delegated  authority  con- 
trary to  the  commission  under  which  it  is  exercised,  is 
void."  1  No  Legislative  act,  therefore,  contrary  to  the 
Constitution,  which  is  the  commission  whence  every 
department  of  the  Government  derives  its  authority 
from  the  People,  can  be  valid.  To  deny  this,  would  be 
to  affirm  that  the  deputy  is  superior  to  his  principal ; 
that  the  servant  is  above  his  master  ;  that  the  represent- 
atives of  the  People  are  greater  than  the  People  them- 
selves ;  and  that  persons  acting  in  virtue  of  a  delegated 
authority,  may  not  only  assume  what  their  powers  do 

void.     1  Bay,  98.     But  see  3  Dall.  398 ;  1  Bald.  74;  1  Har.  S^  J.  249 ; 
2  Rawle,  374. 
1  No.  78,  by  Mr.  Hamilton. 


128  LECTURES   ON 

not  authorize,  but  what  they  expressly  forbid.  If  it  be 
alleged  that  Legislative  bodies  are  themselves  the  con- 
stitutional judges  of  their  own  powers,  and  that  their 
own  construction  of  them  is  conclusive  upon  the  other 
departments  of  the  Government,  it  may  be  answered 
that  this  cannot  be  the  natural  presumption,  where  it  is 
not  to  be  collected  from  the  particular  provisions  of  the 
fundamental  compact.  Without  such  express  provision, 
it  is  not  to  be  intended  to  enable  the  representatives  of 
the  People  to  substitute  their  own  will  in  the  place  of 
that  of  their  constituents ;  it  is  far  more  rational  to 
conclude  that  the  Courts  of  Justice  were,  equally  with 
the  other  departments,  intended  to  represent  the  sov- 
ereignty of  the  People,  in  a  coordinate  and  independent 
one ;  and  in  that  capacity,  to  act  as  an  intermediate 
body  between  the  People  and  the  Legislature,  in  order, 
among  other  things,  to  keep  the  latter  vidthin  the  limits 
assigned  to  its  authority. 

The  interpretation  of  the  laws  is  the  proper  and 
peculiar  province  of  the  Courts  ;  and  the  Constitution 
is,  in  fact,  and  must  be  regarded  by  them  as  a  funda- 
mental law.  It  must,  therefore,  belong  to  them  to 
ascertain  its  meaning,  as  well  as  the  meaning  of  any 
particular  act  proceeding  from  the  Legislative  body. 
If  there  should  happen  to  be  an  irreconcilable  variance 
between  the  two,  that  which  has  the  superior  obligation 
ought,  of  course,  to  be  preferred.  In  other  words,  the 
Constitution  ought  to  be  preferred  to  the  statute, — the 
intention  of  the  People,  to  the  intention  of  their  agents. 
Nor  does  this  conclusion,  by  any  means,  suppose  a 
superiority  of  the  Judicial  to  the  Legislative  power.  It 
only  presumes  that  the  power  of  the  People  is  superior 
to  both  ;  and  where  the  wUl  of  the  Legislature,  declared 


CONSTITUTIONAL  JURISPRUDENCE.  129 

in  the  statute-book,  stands  opposed  to  the  will  of  the 
People  declared  in  the  Constitution,  the  Judges  are  to 
be  governed  by  the  latter,  rather  than  the  former,  and 
ought  to  regulate  their  decisions  by  that  fundamental 
law  over  which  the  Legislature  has  no  control,  rather 
than  by  those  which  it  may,  at  any  time,  alter  or  repeal, 
and  ^vhich  derive  their  validity  and  effect  from  the 
Constitution  alone.  It  can  be  of  no  weight  to  say  that 
the  Courts  of  Justice,  under  the  pretence  of  a  repug- 
nancy between  a  law  and  the  Constitution,  may  substi- 
tute their  own  pleasure  instead  of  the  constitutional 
intentions  of  the  Legislature,  for  this  supposition  not 
only  involves  a  petition  of  the  question,  but  might  as 
well  happen  in  the  case  of  two  contradictory  statutes, 
or  upon  every  separate  adjudication  upon  the  same 
statute.  The  Courts  are  bound  to  declare  the  meaning 
of  the  law ;  and,  if  they  should  be  disposed  to  exercise 
will  instead  of  judg-ment,  the  consequence  in  the  one 
case,  as  well  as  in  the  other,  would  be  the  substitution 
of  their  own  pleasure  in  lieu  of  the  pleasure  of  the 
Legislature.  The  objection  therefore,  if  it  proved  any 
thing,  would  prove  that  there  should  be  no  Judges 
distinct  from  the  Legislative  body.  But  the  danger  of 
intrusting  Judicial  and  Legislative  powers  in  the  same 
hands  has  already  been  pointed  out ;  and  it  has  been 
shown,  I  think,  that  the  object  of  their  separation  was 
not  only  to  create  a  distinct  and  independent  body  to 
expound  the  laws,  but  also  to  erect  a  bulwark  to  defend 
a  Constitution,  limited  in  its  powers,  against  Legislative 
encroachments  or  Executive  usurpation,  while  it  was 
itself  restrained  within  its  proper  bounds  by  correspond- 
ing checks,  in  the  hands  of  the  other  departments,  or 
inherent  in  its  own  constitution. 


130  LECTURES   ON 

The  design  of  this  separation  of  the  Judicial  power 
from  the  other  departments,  and  of  the  precautions  for 
maintaining  its  independence,  was,  moreover,  to  afford 
protection  to  the  Federal  Government,  in  the  exercise 
of  its  acknowledged  powers,  against  the  inroads  or 
influence  of  the  State  sovereignties  ;  and  all  the  re- 
quirements and  illustrations  adduced  in  support  <rf  the 
right  and  duty  of  the  Federal  Courts,  in  the  ordinary 
administration  of  their  authority,  to  declare  void  those 
acts  of  Congress  which,  in  their  judgment,  are  repug- 
nant to  the  Constitution,  apply  with  equal,  if  not 
greater  force,  to  establish  a  more  extensive  power  in 
regard  to  the  acts  and  proceedings  of  the  State  Govern- 
ments. We  have  seen  that  the  People  of  the  several 
States,  in  their  adoption  of  the  Federal  Constitution, 
acknowledged  that  Constitution,  and  the  laws  and 
treaties  made  in  pursuance  of  its  authority,  to  be  the 
supreme  law  of  the  land,  and  as  of  paramount  obliga- 
tion, therefore,  to  the  Constitutions,  as  well  as  of  the 
laws,  of  any  of  the  States.  So  far,  then,  from  admit- 
ting each  party  to  the  National  compact  to  interpret 
that  instrument  for  itself,  those  very  parties,  by  declaring 
that  the  Judicial  power  of  the  Union  should  extend  to 
all  cases  arising  under  it,  vested  in  the  proper  depart- 
ment authority  to  determine  its  construction  in  every 
case  in  which  a  question  should  judicially  arise,  whether 
directly,  between  the  parties  to  the  suit,  or  collaterally, 
betiveen  the  parties  to  the  "  social  contractP  ^ 

The  Courts  of  the  United  States  have  no  jurisdiction 
derived  from  the  Common  Law  to  define  and  punish 

1  The  Supreme  Court  refuses  to  take  up  cases  that  involve  consti- 
tutional questions,  when  the  Court  is  not  full.     9  Peters,  85. 


CONSTITUTIONAL   JURISPRUDENCE.  131 

criminal  offences.^  Congress,  by  an  Act  passed  in  1825, 
provided  that  all  crimes  committed  in  places  within  the 
exclusive  jurisdiction  of  the  United  States,  which  are 
not  defined  by  any  law  of  the  United  States,  should 
be  punished  in  the  same  manner  as  such  crimes  were 
punished  by  the  laws  of  the  particular  States  where 
they  were  committed.  This  Act  is  held  to  be  limited 
to  the  laws  of  the  several  States  as  they  existed  at  the 
time  of  its  enactment.  An  offence,  therefore,  neither 
against  the  Common  Law,  nor  against  any  State 
statute  in  force  at  the  time  the  Act  of  Congress  was 
passed,  cannot  be  punished  in  the  Federal  Courts  in 
virtue  of  that  Act.^  Neither  can  an  offence  against  a 
temporary  statute  be  punished  in  those  Courts,  after 
the  expiration  of  the  Act,  unless  a  particular  provision 
be  made  by  law  for  that  purpose.^ 

1  7   Cranch,  52 ;  1  Wheat.  416  ;  3  Ibid.  336  ;  2   Cond.  Rep.  405  ; 
3  Ihid.  585-590. 

2  6  Peters,  141. 

3  7  Wheat.  551 ;  6  Cranch,  203  ;  2  Cond.  Rep.  346  ;  5  Ibid.  343. 


132  LECTURES   ON 


LECTURE    VI. 

OF   THE   DISTRIBUTION   OF  THE  JUDICIAL   POWER  AMONG 
THE   FEDERAL   COURTS. 

We  now  proceed  to  ascertain  in  what  manner  the 
Federal  jurisdiction  has  been  distributed  among  the 
several  Courts,  either  by  the  Constitution,  or  the  Acts 
of  Congress  carrying  the  system  into  complete  effect. 
It  may  be  observed  generally,  that  the  disposition  of 
this  power,  except  in  a  few  specified  cases,  is  left  to 
Congress  ;  and  that  the  Courts  cannot  exercise  jurisdic- 
tion in  every  case  to  which  the  Judicial  power  extends, 
without  the  intervention  of  Congress.  Congress,  more- 
over, is  not  bound  to  enlarge  the  jurisdiction  of  the 
respective  tribunals  to  every  subject  which  the  Consti- 
tution warrants,  although  the  whole  Judicial  power 
ought,  at  all  times,  to  be  vested  in  some  of  the  Courts 
created  under  the  authority  of  the  United  States. 

It  is  laid  down  as  a  rule,  in  the  eighty-second  number 
of  "  The  Federalist,"  ^  that  the  State  Courts  retained 
all  preexisting  authority,  —  or  the  jurisdiction  which 
they  had  before  the  adoption  of  the  Constitution  of 
the  United  States,  —  except  where  it  was  taken  away 
either  by  an  exclusive  authority  granted  in  express 
terms  to  the  Union  by  that  instrument,  or  in  a  case 

1  By  Mr.  Hamilton. 


CONSTITUTIONAL  JURISPRUDENCE.  133 

where  a  particular  authority  is  granted  to  the  Union, 
and  the  exercise  of  a  like  authority  is  prohibited  to  the 
States,  or  in  the  case  where  an  authority  is  granted  to 
the  Union,  with  which  a  similar  authority  in  the  States 
would  be  incompatible.  A  concurrent  jurisdiction  in 
the  State  Courts  was  admitted  in  all  such  cases ;  but 
this  doctrine  is  applicable  only  to  those  descriptions 
of  causes  of  which  the  State  Courts  had  previous 
cognizance,  and  not  to  cases  growing  out  of  the  new 
Constitution. 

Congress,  in  the  course  of  its  legislation,  may  commit 
the  decision  of  cases  arising  under  its  own  laws,  to  the 
Federal  Courts  exclusively  ;  but  unless  the  State  Courts 
were  expressly  excluded  by  the  Act  of  Congress,  they 
would,  of  course,  take  concurrent  jurisdiction  of  the 
causes  to  which  those  acts  may  give  birth,  under  the 
qualifications  mentioned.  And  before  the  adoption  of 
the  Constitution,  it  was  asserted  and  maintained  by  its 
ablest  commentators,  that  in  all  cases  of  concurrent 
jurisdiction,  an  appeal  would  lie  to  the  Supreme  Court 
of  the  United  States ;  and  that,  without  such  appeal, 
the  concurrent  jurisdiction  of  the  State  Courts  in  mat- 
ters of  National  concern,  would  be  inadmissible,  because, 
in  that  case,  it  would  be  inconsistent  with  the  authority 
and  efficiency  of  the  National  Government.  The  prac- 
tice of  that  Government  has  been  conformable  to  this 
doctrine  ;  and  the  exclusive  and  concurrent  jurisdiction 
conferred  upon  the  Federal  Courts  by  the  Acts  of  Con- 
gress, are  clearly  distinguished  and  marked  in  corre- 
spondence with  it. 

It  is,  nevertheless,  manifest,  that  the  Judicial  power 
of  the  United  States  may,  in  all  cases  which  it  compre- 
hends, be  made  exclusive  of  State  authority,  at  the 
12  • 


134  LECTURES   ON 

election  of  Congress.  Hence,  the  concurrent  jurisdic- 
tion of  the  State  tribunals  depends  altogether  upon  the 
pleasure  of  the  National  Legislature,  and  whenever 
Congress  thinks  proper,  it  may  be  revoked  and  extin- 
guished in  every  case  which  can  constitutionally  be 
made  cognizable  in  the  National  Courts ;  but  without 
an  expiess  provision  to  the  contrary,  the  State  Courts 
retain  a  concurrent  jurisdiction  in  all  cases  of  which, 
previous  to  the  Federal  Constitution,  they  possessed  the 
jurisdiction.  But  Acts  of  Congress  giving  the  State 
Courts  jurisdiction  of  suits  on  the  penal  laws  of  the 
United  States,  have  in  some  of  the  States  been  declared 
unconstitutional ; '  although  it  is  admitted  that  a  State 
magistrate  may  commit  for  further  examination  touch- 
ing a  crime  against  the  United  States.^ 

The  State  Courts,  moreover,  may,  in  the  exercise  of 
their  ordinary  original  jurisdiction,  take  cognizance  inci- 
dentally  of  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States ;  and  the  Courts  of 
one  State  have  power  to  decide  on  the  validity  of  the 
Legislative  acts  of  another,  with  respect  to  the  Consti- 
tution of  the  United  States,  when  the  question  arises 
in  a  case  within  their  jurisdiction ;  but,  in  all  these 
cases,  the  Judicial  power  of  the  Union  extends  by  means 
of  its  appellate  jurisdiction.^ 

In  order  to  ascertain  to  what  extent,  and  in  what 
manner,   the    Federal   jurisdiction,   both   original  and 

1  7  Conn.  239,  244;  17  Johns.  Rep.  A,  261;  1  Virg.  Cases,  321; 
2  Ibid.  34  ;  1  Dana,  442.  Contra,  11  Serg.  &>'  Rawle,  193.  See  also 
4  Dall.  Appendix  XXVI.;  2  Atk.  89;  5  Har.  §- Jl  317;  2  Bailey, 
44. 

2  2  Cowen,  273. 

3  5  Binn.  355  ;  8  Pick.  194.     But  see  12  Serg.  §•  Rawle,  203. 


CONSTITUTIONAL  JURISPRUDENCE.  135 

appellate,  has  been  disposed  of,  either  by  the  Constitu- 
tion itself,  or  by  Act  of  Congress,  we  must  review,  as 
we  proposed,  the  various  Courts  established  by  the  one, 
or  ordained  by  the  other. 

I.  The  Supreme  Court  of  the  United  States, 
although  created  by  the  Constitution,  received  its  or- 
ganization from  the  Judiciary  Act  of  1789,  and  the 
several  supplementary  statutes  which  have  at  different 
times,  subsequently,  been  passed  in  relation  to  it.  The 
Constitution  had  merely  declared  that  there  should  be 
a  Supreme  Court,  with  certain  original  and  appellate 
powers ;  it  is  only  to  be  implied  from  that  instrument 
that  "  The  Chief  Justice  of  the  United  States  "  should 
preside  in  it,  with  other  Judges  to  be  associated  with 
him.^  By  the  existing  Act  of  Congress,  it  consists  of 
the  Chief  Justice  and  eight  associate  Judges,  any  five 
of  whom  constitute  a  quorum.  It  holds  one  term  annu- 
ally, at  the  seat  of  the  General  Government,  commenc- 
ing on  the  first  Monday  in  January  ;  and  although  the 
presence  of  five  Judges  is  required  for  the  general  busi- 
ness of  the  Court,  yet  any  one  or  more  of  them  may 
make  all  necessary  orders  in  a  suit,  preparatory  to  the 
hearing  or  trial ;  and  it  is  made  the  special  duty  of  the 
Chief  Justice  to  attend  at  Washington  on  the  first 
Monday  in  August,  annually,  for  the  same  purpose. 

The  Supreme  Court  has,  by  the  Constitution,  exclu- 
sive original  jurisdiction  of  all  controversies  of  a  civil 
nature,  where  a  State  can  be  made  a  party,  except  in 
suits  by  a  State  against  one  or  more  of  its  citizens,  or 
against  citizens  of  other  States,  or  against  aliens ;  in 
which  cases  it  has  original  but  not  exclusive  jurisdiction. 

1  Const  U.  S.,  Art  III.  Sect  ii.  1. 


136  LECTUBES   ON 

It  has,  also,  exclusively  such  jurisdiction  of  suits  or 
proceedings  against  ambassadors,  or  other  public  minis- 
ters, or  their  domestics,  as  a  Court  of  Law  can  exercise 
consistently  with  the  Law  of  Nations;  original^  but 
not  exclusive  jurisdiction  of  all  suits  brought  by  ambas- 
sadors, or  other  public  ministers,  or  in  which  a  Consul 
or  Vice-Consul  may  be  a  party.^ 

If  a  foreign  Minister,  or  Consul,  sued  in  a  State 
Court,  omit  to  plead  his  privilege  of  exemption,  and 
afterwards,  upon  removing  the  suit  from  an  inferior  to 
a  higher  Court,  he  claims  the  privilege,  such  omission 
is  not  a  waiver  of  it.  Were  it  viewed  only  as  a  per- 
sonal privilege,  there  might  be  grounds  for  an  opposite 
conclusion  ;  but  it  cannot  be  so  considered.  It  is  the 
privilege  of  the  Country  or  Government  which  the  Min- 
ister or  Consul  represents.  This  is  the  light  in  which 
foreign  Ministers  are  viewed  by  the  Law  of  Nations ; 
and  our  Constitution  and  laws  seem  to  regard  Consuls 
in  the  same  light  in  this  respect.^ 

The  Constitution  also  confers  on  the  Supreme  Court 
an  appellate  jurisdiction,  under  such  exceptions  or  regu- 
lations as  Congress  may  prescribe ;  and  by  the  first 
Judiciary  Act,^  it  is  declared  that  appeals  shall  lie  to 
this  Court  from  the  Circuit  Courts  of  the  United  States, 
and,  in  certain  cases,  from  the  highest  Courts  of  the 
several  States.  Final  judgments  and  decrees  in  civil 
actions,  and  suits  in  Equity  in  the  Circuit  Courts, 
whether  brought  there  by  original  process,  or  removed 
thither  from  the   State  Courts,  or  by  appeal  from  the 

1  Const  U.  S.,  Art.  m.  Sect.  ii.  2. 

2  7  Peters,  276. 

3  Passed  Sept.  24,  1789. 


CONSTITUTIONAL  JURISPRUDENCE.  137 

District  Courts  of  the  United  States, —  where  the  mat- 
ter in  dispute  exceeds  a  specified  sum,  may  be  reexam- 
ined, and  reversed  or  affirmed  by  the  Supreme  Court ; 
and  final  judgments  or  decrees  of  the  Circuit  Courts,  in 
cases  of  Admiralty  and  Maritime  jurisdiction, —  and  in 
questions  of  prize  or  no  prize,  where  the  matter  in  dis- 
pute exceeds  the  same  amount,  may  be  reviewed  on 
appeal  in  the  Supreme  Court ;  and  in  these  cases,  new 
evidence  is  admitted  on  the  appeal,  conformably  with 
the  general  doctrines  and  usages  of  appellate  Courts  of 
Admiralty.^  So,  also,  a  final  judgment  or  decree  of  the 
highest  Court  of  Law  or  Equity  in  a  State,  may  be 
brought  up  on  the  allegation  of  error  in  point  of  law, 
to  the  Supreme  Court  of  the  United  States — if  the 
validity  of  a  treaty  or  of  an  Act  of  Congress,  or  of  an 
authority  exercised  under  the  Government  of  the  United 
States  was  drawn  in  question  in  the  State  Court,  and 
the  decision  was  against  that  validity  ;  or  if  the  validity 
of  any  State  law  or  authority  was  drawn  in  question 
on  the  ground  of  its  repugnancy  to  the  Constitution, 
laws,  or  treaties  of  the  United  States,  and  the  decision 
was  in  favor  of  its  validity ;  or  if  the  construction  of 
any  clause  of  the  Constitution,  or  of  a  treaty,  or  statute 
of  the  United  States,  or  of  a  commission  held  under 
them,  was  drawn  in  question,  and  the  decision  was 
against  the  title,  right,  privilege,  or  exemption  especially 
claimed  under  the  authority  of  the  Union.  Upon  these 
appeals  firom  the  decision  of  a  State  Court,  however, 
no  other  error  can  be  assigned,  or  regarded  in  the  Su- 
preme Court  than  such  as  appears  on  the  face  of  the 
record,  and  immediately  respects   the  question  of  the 

1  7  Cranch,  107  ;  2  Cond.  Rep.  434. 

12* 


138  LECTURES   ON 

validity,  or  construction  of  the  Constitution,  treaties, 
statutes,  commissions,  or  authority  in  dispute.' 

1.  The  original  jurisdiction  of  the  Supreme  Court, 
or  that  cognizance  which  it  takes  of  causes  in  their 
initiatory  proceedings,  is,  as  may  have  been  perceived, 
of  a  very  limited  character.  It  is  confined  by  the  Con- 
stitution to  those  cases  which  affect  ambassadors,  and 
other  public  ministers,  and  consuls,  and  those  in  which 
a  State  can  be  made  a  party ;  and  it  has  been  made  a 
question  whether  the  original  jurisdiction  was  intended 
to  be  exclusive  of  the  inferior  Courts  of  the  United 
States,  or  of  the  State  tribunals.  The  Act  of  1789, 
seems  to  have  considered  it  competent  for  Congress  to 
vest  concurrent  jurisdiction  in  the  above  specified  cases, 
in  other  Courts  than  the  Supreme  Court ;  for  it  gives  a 
concurrent  jurisdiction  in  some  of  them  to  the  Circuit 
Courts  ;  and  it  has  been  held  that  the  word  "  original," 
was  not  here  to  be  taken  to  imply  exclusive  cognizance 
of  the  cases  enumerated.^  But  an  opinion  of  the  Su- 
preme Court,  in  another  case,  goes  far  towards  estab- 
lishing the  principle  of  exclusive  jurisdiction  in  that 
Court,  in  all  these  cases  of  original  jurisdiction ;  and 
although  this  le^st  decision  was  subsequently  considered 
as  shaking  the  first,  yet  the  question  was  afterwards  left 
in  doubt  by  the  Court,  and  a  decision  upon  it  purposely 
waived.'^ 

Admitting,  then,  that  this  original  jurisdiction  can  be 
shared  by  other  Courts,  in  the  discretion  of  Congress,  it 
has  been  decided  that  it  cannot  be  enlarged ;  and  that 

>  4  Wheat.  311 ;  4  Cond.  Rep.  465. 

2  2  Dall.  297. 

3  1  Cranch,  177  ;  5  Serg.  §•  Rawle,  545  ;  11  Wheat.  467. 


CONSTITUTIONAL  JURISPRUDENCE.  139 

the  Supreme  Court  cannot  be  invested  with  an  original 
jurisdiction  by  Act  of  Congress,  in  cases  other  than 
those  described  in  the  Constitution.  Congress  has  no 
authority  to  give  it  original  jurisdiction,  where  the  Con- 
stitution has  declared  that  it  shall  be  appellate,  nor 
appellate  where  the  Constitution  has  declared  it  shall 
be  original.^  Nor  can  Congress  impose  upon  Judicial 
officers,  duties  not  strictly  of  a  Judicial  character.^ 

The  Constitution  gives  to  the  Supreme  Court  orig- 
inal jurisdiction  in  those  cases  in  which  a  State  shall 
be  a  party,  and  the  Supreme  Court  has  laid  down  as  a 
rule  that  it  must  be  a  case  in  which  a  State  is  either 
nominally  or  substantially  the  party,  and  that  it  is  not 
sufficient  that  the  State  may  be  consequentially  affected.^ 
But  although  a  State  cannot  be  made  a  defendant,  a 
suit  may  be  maintained  against  its  officers  and  agents 
intrusted  with  the  execution  of  a  law  granting  a,  fran- 
chise. Jurisdiction  is  'neither  given  nor  taken  away  by 
the  relative  situation  of  the  parties  concerned  in  interest, 
but  of  those  named  in  the  record;  consequently,  the 
operation  of  the  amendment  to  the  Constitution  affect- 
ing the  question  is  limited  to  those  suits  in  which  a 
State  is  a  party  on  the  record.  For  the  jurisdiction  of 
the  Federal  Courts  is  not  ousted  by  any  incidental  or 
consequential  interest  which  a  State  may  have  in  the 
decision.  Unless,  therefore,  the  interest  of  the  State  is 
to  be  determined  by  the  inspection  of  the  record,  to 
ascertain  whether  it  be  a  party,  the  Constitution  has 
given  no  rule  by  which  this  interest  is  to  be  measured. 
If  the  Courts  of  the  United  States  were  required  to  fix 
a  test  or  standard,  the  curious  anomaly  would  be  pre- 

1  1  Crunch,  137,  2  2  Dall.  409.  3  3  Ibid.  411. 


140  LECTURES   ON 

sented  of  a  Court  examining  the  whole  testimony  in  the 
cause,  —  inquiring  into,  and  deciding  upon  the  State's 
interest,  without  having,  it  may  be,  any  jurisdiction  in 
the  case.  If  the  authority  of  the  English  decisions 
were  to  determine  the  question,  it  i!s  believed  that  no 
case  can  be  adduced  from  the  English  books  where  any 
person  has  been  considered  a  party  to  a  suit,  who  was 
not  a  party  to  the  record.  Where  a  State  is  not  a 
party  to  the  record,  and  the  Court  has  jurisdiction  over 
those  who  are,  the  true  question  is  not  one  of  jurisdic- 
tion, but  whether,  in  the  exercise  of  its  jurisdiction,  it 
ought  to  make  a  decree  against  the  parties  defendant, 
whether  they  are  to  be  considered  as  having  a  real 
interest,  or  as  being  only  nominal  parties ;  and,  where 
there  is  a  personal  responsibility  which  might  be  en- 
forced by  an  action,  the  parties  must  certainly  have  a 
real  interest  at  stake.^ 

And  although  the  Judicial  power  of  the  Union  ex- 
tends to  controversies  between  a  State  and  foreign 
States,  citizens,  or  subjects,  and  the  Constitution  gives 
original  jurisdiction  to  the  Supreme  Court  in  all  cases 
in  which  a  State  shall  be  a  party,  yet  it  was  held  in  the 
celebrated  case  of  the  Cherokee  Indians  that  they  were 
not  a  foreign  nation,  within  the  meaning  of  the  Consti- 
tution.2  They  were,  indeed,  considered  to  be  a  political 
community  or  State ;  and  have  been  uniformly  treated 
as  such  since  the  first  settlement  of  the  country.  The 
numerous  treaties  with  them  by  the  United  States 
recognize  them  as  a  people  capable  of  maintaining  the 
relations  of  peace   and  war ;   as  being  responsible  in 

I  6  Wheat.  264  ;  5  Cond.  Rep.  90. 
5  Petersy  1 ;  1  Cond.  Rep.  6. 


CONSTITUTIONAL  JUEISPRUDENCE.  141 

their  political  character  for  any  violation  of  their  en- 
gagements, or  any  aggressions  upon  our  citizens  by 
any  individual  of  their  tribe ;  laws  have  been  enacted 
in  the  spirit  of  those  treaties,  and  the  Courts  are  held 
to  be  bound  by  those  acts  of  the  Government,  v^^hich 
have  thus  plainly  recognized  this  nation  of  Indians  as 
a  State. 

The  condition  of  the  Indian  tribes,  in  regard  to  their 
connection  with  the  United  States,  bears  little  resem- 
blance to  the  relations  between  any  other  two  people  in 
the  world.  In  general,  nations  not  owing  a  common 
allegiance  are  foreign  to  each  other.  But  the  relation 
of  the  Indians  to  the  Government  of  the  United  States 
is  marked  by  a  peculiar  and  cardinal  distinction.  The 
Cherokees  are  acknowledged  to  have  an  unquestionable, 
and,  until  that  controversy  arose,  an  unquestioned  right 
to  the  lands  they  occupied,  until  that  right  was  extin- 
guished by  voluntary  cession  to  the  Federal  Govern- 
ment. It  was,  nevertheless,  doubted  whether  they,  or 
any  of  the  tribes  residing  within  the  acknowledged 
boundaries  of  the  United  States,  could  with  accuracy 
be  denominated  foreign  States.  They  may  more  cor- 
rectly be  called  domestic,  dependent  nations,  occupying 
a  territory  over  which  our  Government  asserts  a  right 
independent  of  their  will,  and  which  must  take  effect 
in  point  of  possession  when  their  right  of  occupancy 
ceases.  In  the  mean  time,  their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian, — they 
look  to  the  Federal  Government  for  protection,  rely  on 
its  kindness,  and  appeal  to  its  sympathies,  for  the  relief 
of  their  wants. 

Under  these  circumstances,  the  Cherokees  sought  to 
restrain  the  State  of  Georgia,  within  whose  territorial 


142  LECTURES   ON 

limits  their  lands  were  situate, —  from  the  forcible  exer- 
cise of  Legislative  power  over  them,  claiming  their 
independence  as  a  separate  and  neighboring  people, — 
their  right  to  which  the  State  denied.  The  Court  held 
its  power  to  interpose  for  their  protection  to  be,  at  least, 
doubtful ;  but  intimated  that  the  mere  question  of  right 
might,  perhaps,  be  settled  in  a  proper  case  with  proper 
parties.  But  it  was  asked  on  that  occasion,  to  do  more 
than  decide  the  title  ;  it  was  called  on  to  control  the 
Legislature  of  Georgia,  and  to  restrain  the  exertion  of 
its  physical  force ;  and  the  propriety  of  such  an  inter- 
position might  well  be  questioned,  as  it  savored  too 
much  of  the  exercise  of  political  power  to  be  within 
the  province  of  the  Judicial  department ;  and  it  refused 
to  interfere. 

In  cases  in  which  the  Court  has  original  jurisdiction, 
the  form  of  proceeding  is  not  regulated  by  Act  of  Con- 
gress, but  by  the  rules  and  orders  of  the  Court,  which 
are  framed  in  analogy  to  the  practice  of  the  English 
Court  of  Chancery.  But  the  Supreme  Court  does  not 
follow  this  practice  where  it  would  embarrass  the  case 
by  unnecessary  technicality  or  defeat  the  purposes  of 
Justice.^ 

Before  the  adoption  of  the  eleventh  Amendment  of 
the  Constitution,^  a  suit  might  have  been  brought 
against  a  State  by  the  citizens  of  another  State ;  ^  but 
since  the  ratification  of  that  Amendment,  the  Supreme 
Court  can  exercise  no  jurisdiction  in  any  case,  whether 
pending   at  that  time,  or   afterwards   commenced,  in 

1  17  Howard,  478. 

S  2  Dall.  419. 

3  3  Ibid.  378  ;  1  Cond.  Rep.  169. 


CONSTITUTIONAL  JURISPRUDENCE.  143 

which  a  State  is  sued  by  citizens  of  another  State,  or 
by  citizens  or  subjects  of  a  foreign  State.^  This  amend- 
ment, however,  does  not  affect  the  right  of  a  State  to 
assert,  as  a  plaintiff,  any  interest  it  may  have  in  a  sub- 
ject which  forms  a  matter  of  controversy .^  And  where 
a  State  is  not  necessarily  a  defendant,  the  mere  sug- 
gestion of  its  title  to  property  in  the  possession  of  an 
individual  cannot  arrest  the  proceedings,  or  prevent  the 
Court  from  looking  into  the  suggestion,  and  examining 
the  validity  of  the  title.^ 

It  was  once  made  a  question,  as  we  have  seen, 
whether  the  jurisdiction  of  the  Supreme  Court  is  not 
only  original  but  exclusive^  in  cases  affecting  Ambassa- 
dors, and  other  public  Ministers,  and  Consuls,  according 
to  the  true  construction  of  the  second  Section  of  the 
third  Article  of  the  Constitution,  and  the  better  opinion 
seems  now  to  be  that  it  is.^ 

Thus  much  for  the  original  jurisdiction  of  the  Su- 
preme Court.  We  now  proceed  to  that  which  is 
appellate. 

2.  It  is  the  appellate  power  of  the  Supreme  Court  of 
the  United  States  which  gives  to  it  its  greatest  dignity 
and  efficacy,  and  renders  it  a  constant  object  of  solici- 
tude and  attention  to  the  Government  and  People  of 
the  several  States.  We  have  seen  that,  by  an  Act  of 
Congress,  a  final  judgment  or  decree  of  the  highest 
Court  of  Law  or  Equity  in  a  State,  may,  in  certain 
cases,  under  various  circumstances,  be  reviewed,  and 

1  5  Cranch,  115  ;  2  Cond.  Rep.  202. 

2  Ibid. 

3  See  cases  cited  above. 

4  11  Wheat.  467;  6  Ibid.  264;  6  Cond.  Rep.  394;  5  Ibid.  90;  2 
Dall.  297. 


144  LECTURES   ON 

reversed  or  affirmed  in  the  Supreme  Court  of  the  Union. 
In  cases  of  reversal,  the  cause  may  be  remanded  to  the 
State  Court  for  final  judgment,  to  be  rendered  in  accord- 
ance with  the  opinion  of  the  Supreme  Federal  tribunal ; 
or  that  Court  may,  at  its  discretion, —  if  the  cause  have 
once  before  been  remanded, —  proceed  itself  to  a  final 
decision,  and  award  execution  of  its  judgment  or  de- 
cree. Under  this  authority,  it  has  been  declared  by  the 
Supreme  Court,  that  if  the  highest  Court  in  a  State 
reverse  the  judgment  of  a  subordinate  Court,  and  on  an 
appeal,  the  judgment  of  the  higher  Court  be,  in  its 
turn,  reversed  by  the  Supreme  Court  of  the  United 
States,  it  becomes  a  mere  nullity ;  and  the  mandate  for 
execution  may  issue  directly  from  that  Court  to  the 
inferior  State  Court.^ 

But  in  a  subsequent  case,  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States  was  directed  to 
the  Court  of  Appeals  in  Virginia,  being  the  highest 
Court  in  that  State,  upon  a  judgment  entered  on  ap- 
peal from  an  inferior  State  Court,  against  a  right 
claimed  under  the  treaty  with  Great  Britain,  and  the 
judgment  of  the  Court  of  Appeals  was  reversed  by  the 
Supreme  Court ;  the  cause  was  remanded,  and  the 
Virginia  Court  of  Appeals  was  required  to  cause  the 
original  judgment,  which  had  been  reversed  in  that 
Court,  to  be  carried  into  due  execution.  The  Court  of 
Appeals,  when  the  case  came  back  to  it,  resolved  that 
the  appellate  power  of  the  Supreme  Court  did  not 
extend  to  the  State  Courts ;  that  the  Act  of  Congress 
to  that  effect  was  not  warranted  by  the  Constitution  ; 
and  that  the  proceedings  of  the  Supreme  Court  were 

1  8  DaU.  341. 


CONSTITUTIONAL  JURISPRUDENCE.  146 

invalid  in  relation  to  the  Court  of  Appeals, — which 
consequently  declined  obedience  to  the  mandate  of  the 
former.^  A  new  writ  of  error  was  awarded  upon  this 
refusal,  and  the  case  came  up  again  before  the  Supreme 
Court,  as  a  case  in  which  the  Court  below  drew  in 
question  and  denied  the  validity  of  the  Act  of  Congress 
authorizing  an  appeal  from  a  State  Court.  In  the 
luminous  opinion  delivered  on  that  occasion,  by  the 
venerable  and  learned  Chief  Justice  Marshall,  he  gave 
a  full,  argumentative,  and  conclusive  exposition  of  the 
powers  and  jurisdiction  vested  in  the  Supreme  Court, 
either  by  the  Constitution  or  the  Acts  of  Congress, 
upon  every  point  in  which  they  have  been  called  in 
question. 

He  began  by  observing  that  the  Judicial  power  of 
the  United  States  had  been  declared  by  the  Constitu- 
tion to  extend  to  all  cases  arising  under  treaties  made 
under  the  authority  of  the  United  States ;  which  was 
an  absolute  grant  of  JTirisdiction  in  those  cases ;  and 
that  it  was  competent  for  the  People  to  invest  the  Gen- 
eral Government  with  that,  or  any  other  powers  which 
they  might  deem  necessary  and  proper,  as  well  as  to 
prohibit  the  States  from  the  exercise  of  any  powers 
which  in  their  (the  People's)  judgment,  were  incompati- 
ble with  the  objects  of  the  general  compact.  Congress 
was  bound  by  the  injunctions  of  the  Constitution  to 
create  inferior  Courts,  in  which  to  vest  all  that  Judicial 
jurisdiction  which  was  exclusively  vested  in  the  United 
States,  and  of  which  the  Supreme  Court  cannot  take 
other  than  appellate  cognizance.  The  whole  Judicial 
power  must,  at  all  times,  be  vested  either  in  an  original 

1  7  CrancTi,  603. 

13 


146  LECTURES   ON 

or  appellate  form,  in  some  Courts  created  under  the 
authority  of  the  United  States.  The  grant  of  the  Ju- 
dicial power  was  thus  declared  to  be  absolute  ;  and  it 
was  held  to  be  imperative  upon  Congress  to  provide 
for  the  appellate  jurisdiction  of  the  Federal  Courts  in 
all  cases  in  which  the  Judicial  power  was  granted  ex- 
clusively to  the  United  States  by  the  Constitution,  and 
not  already  given,  by  way  of  original  jurisdiction  to 
the  Supreme  Coiirt. 

This  eminent  and  statesmanlike  Judge  in  entering 
upon  his  examination  of  the  Judicial  power,  took  a 
distinction  between  the  two  classes  of  enumerated  cases, 
and  held  that  the  Constitution  intended  that  the  Ju- 
dicial power,  either  in  an  original  or  appellate  form, 
should  extend  absolutely  to  all  cases  in  law  or  equity 
arising  under  the  Constitution  and  laws  of  the  United 
States,  and  the  treaties  made  under  the  authority  of 
their  Government ;  to  all  cases  affecting  Ambassadors, 
other  public  Ministers,  and  Consuls,  and  to  all  cases 
of  admiralty  and  maritime  jurisdiction,  because  those 
cases  were  of  vital  importance  to  the  sovereignty  of  the 
Union,  entered  into  the  public  policy,  and  affected  the 
national  rights,  and  the  law  and  comity  of  nations. 
The  original  or  the  appellate  jurisdiction  ought,  there- 
fore, in  these  cases,  to  be  commensurate  with  the  mis- 
chiefs and  policy  in  view.  But  in  respect  to  another 
class  of  cases,  the  Constitution  had  designedly  dropped 
the  word  "  a//,"  so  as  not  absolutely  to  extend  the  juris- 
diction of  the  Federed  Judiciary  to  all  controversies, 
but  merely  to  controversies  in  which  the  United  States 
were  a  party,  or  between  two  or  more  States,  or  be- 
tween citizens  of  different  States,  or  foreign  States, 
citizens,  or  subjects,  leaving  it  to  Congress  to  qualify 


CONSTITUTIONAL  JUEISPRTJDENCE.  147 

the  jurisdiction,  original,  or  appellate,  in  such  manner 
as  public  policy  might  dictate.^ 

But  whatever  weight  may  be  due  to  this  distinction, 
it  is  manifest  that  the  Judicial  power  was  unavoidably, 
in  some  instances,  exclusive  of  all  State  authority,  and 
in  all  others  might  be  made  so  at  the  discretion  of 
Congress.  The  Act  of  1789  assumed  that,  in  all  the 
cases  to  which  the  Judicial  power  of  the  United  States 
extended.  Congress  might  rightfully  vest  exclusive  juris- 
diction in  their  own  Courts.  The  criminal  and  admi- 
ralty jurisdiction  must  be  exclusive ;  and  it  is  only  in 
those  cases  where,  previously  to  the  Constitution,  the 
State  tribunals  possessed  jurisdiction  independently  of 
national  authority,  that  they  can  now  constitutionally 
exercise  a  concurrent  jurisdiction.  But  unless  Congress 
had  provided  a  rule  to  regulate  the  proceedings  of  the 
Supreme  Court,  as  to  its  appellate  jurisdiction,  that 
Court  could  not  have  exercised  it ;  and  where  such  rule 
has  been  provided  by  Congress,  the  Court  cannot  de- 
part from  it^ 

The  appellate  jurisdiction  is  not  limited  by  the  Con- 
stitution to  the  Supreme  Court,  but  Congress  may 
create  a  succession  of  inferior  tribunals,  in  each  of 
which  it  may  vest  appellate  as  well  as  original  juris- 
diction. The  appellate  jurisdiction  of  the  Supreme 
Court,  in  cases  where  it  has  not  original  jurisdiction, 
being  by  the  Constitution  subject  to  such  exceptions 

^  The  Supreme  Court  has  jurisdiction  to  ascertain  and  establish  the 
boundaries  between  different  States.  For  although  the  Constitution 
does  not,  In  terms,  extend  the  Judicial  power  to  all  controversies 
between  two  or  more  States,  yet  it,  in  terms,  excludes  none,  whatever 
may  be  their  nature  or  object. 

2  2  Peters,  657. 


148^  LECTURES   ON 

and  regulations  as  Congress  may  prescribe,  it  remained 
in  its  discretion  to  provide  for  the  exercise  of  the 
Judicial  power  in  all  the  various  forms  of  appeal.  The 
right,  therefore,  of  removing  a  cause  from  a  State  Court 
by  a  defendant  entitled  to  try  his  right,  or  assert  his 
privilege  in  the  National  Forum,  is,  in  fact,  the  exercise 
of  an  appellate  power,  as  that  power  may  exist  as  well 
before  as  after  judgment, — and  by  availing  himself  of 
it  at  an  early  stage  of  the  proceeding,  the  defendant  is 
enabled  to  save  much  of  the  time,  and  avoid  much  of 
the  expense,  of  litigation.  Nor  is  the  right  limited  to 
cases  pending  in  the  Courts  of  the  United  States.  Had 
it  been  so  limited,  it  would  necessarily  have  followed, 
that  the  jurisdiction  of  the  Federal  tribunals  must  have 
been  exclusive  of  the  State  Courts,  in  all  the  cases 
enumerated  in  the  Constitution  ;  and  inasmuch  as  the 
Judicial  power  of  the  United  States  embraces  all  those 
cases,  the  State  Courts  cannot,  consistently  with  the 
express  terms  of  the  Federal  Constitution,  entertain 
any  jurisdiction  of  them  without  the  right  of  appeal  to 
the  Federal  tribunals.  For  if  the  State  Courts  were 
allowed  to  exercise  a  concurrent  jurisdiction  in  those 
cases  free  from  such  control,  the  appellate  jurisdiction 
of  the  Union  would,  as  to  the  cases  in  question,  have 
no  existence ;  which  would  be  contrary  to  the  manifest 
intent  of  the  Federal  Constitution.^ 

The  appellate  power  of  the  Federal  Courts  must, 
therefore,  continue  to  extend  to  the  State  Courts  so 
long  as  the  latter  entertain  any  concurrent  jurisdiction 
over  the  cases  which  the  Constitution  has  declared  to 


1  Consent  of  parties  cannot  confer  jurisdiction   on  the  Supreme 
Court.     16  Peters,  625. 


CONSTITUTIONAL  JURISPRUDENCE.  149 

fall  within  the  Judicial  cognizance  of  the  United  States. 
It  is  clear  that  the  Constitution  contemplated  that  such 
cases  would  not  only  arise  in  the  State  Courts,  in  the 
ordinary  exercise  of  their  concurrent  jurisdiction,  but 
that  those  tribunals  would  incidentally  take  cognizance 
of  questions  of  which  the  Courts  of  the  United  States 
have  exclusive  jurisdiction.  Inasmuch,  therefore,  as  the 
Judicial  power  of  the  Union  extends  to  both  the  above 
specified  classes  of. cases,  it  follows  as  a  necessary  con- 
sequence, that  the  appellate  jurisdiction  of  the  Federal 
Courts  must,  and  does,  extend  to  every  case  within  the 
Federal  Judicial  power.  All  the  enumerated  cases  of 
Federal  cognizance  are  those  which  touch  the  safety, 
peace,  and  sovereignty  of  the  Union,  or  in  which  it 
may  be  presumed  that  State  attachments,  prejudices, 
jealousies,  or  interests  might  sometimes  obstruct  or 
control  the  regular  administration  of  justice.  To  all 
such  cases  the  appellate  power  is  applied  on  the  plainest 
principles  of  policy  and  wisdom ;  and  this  is  requisite 
to  fulfil  effectually  the  great  and  beneficial  ends  of  the 
Constitution;  and,  especially  to  give  efficacy  to  the 
power  of  deciding  in  all  cases  of  conflict  between  the 
several  States,  or  collision  between  powers  claimed  by 
a  State,  and  those  claimed  by  the  General  Government ; 
and  especially  to  maintain  the  declared  supremacy  of 
the  Constitution,  Laws,  and  Treaties  of  the  United 
States,  over  the  Constitution  and  Laws  of  the  respective 
States.  The  existence  of  such  a  power  was,  moreover, 
deemed  necessary  to  preserve  uniformity  of  decision 
throughout  the  Union,  upon  all  subjects  within  the  pur- 
view of  the  Constitution ;  and  to  prevent  the  mischiefs 
of  opposite  constructions  and  contradictory  decisions  in 
the  several  States  on  these  points  of  general  concern. 
13* 


150  LECTUBES   ON 

The  appellate  power  of  the  Federal  Judiciary  over 
the  State  tribunals  does  not,  however,  extend  to  a  final 
judgment  in  a  State  Court  on  a  question  arising  under 
the  authority  of  the  Union,  although  a  State  be  a  party ; 
because  that  jurisdiction  was  given  to  the  Federal 
Courts  only  in  two  classes  of  cases ;  in  the  one,  it  de- 
pends on  the  character  of  the  cause,  whoever  may  be 
the  parties  ;  in  the  other,  it  depends  entirely  on  the 
character  of  the  parties,  and  then  the  subject  of  the 
controversy  is  wholly  unimportant.  In  the  celebrated 
case  of  the  Georgia  missionaries,'  where  the  validity, 
or,  at  least,  the  construction  of  the  treaty  made  by  the 
United  States  with  the  Cherokee  Indians,  had  been 
drawn  in  question  in  the  highest  Court  of  that  State,  and 
the  decision  had  been,  if  not  "  against  the  validity," — 
against  a  "  right,  privilege,  and  exemption  claimed  under 
them,"  and  where,  also,  had  been  drawn  in  question  the 
validity  of  a  law  of  Georgia,  on  the  ground  of  its  be- 
ing repugnant  to  the  Constitution,  Treaties,  and  Laws 
of  the  United  States,  and  the  decision  had  been  in 
favor  of  its  validity, — it  was  considered  by  the  Supreme 
Court  too  clear  for  controversy  that  the  Judiciary  Act 
of  Congress  had  given  it  the  power,  and,  of  course,  im- 
posed on  it  the  duty,  of  exercising  an  appellate  juris- 
diction in  the  case,  notwithstanding  it  arose  upon  a 
criminal  prosecution  in  the  State  Court,  founded  upon  an 
Act  of  the  State  Legislature.  The  law  of  Georgia  was 
held  to  be  repugnant  to  the  Constitution,  Laws,  and 
Treaties  of  the  United  States ;  and  Chief  Justice  Mar- 
shall, who  delivered  the  opinion  of  the  Court,  declared 
that  its  jurisdiction  was  no  less  clear  in  that  case  than 

1  6  Peters,  515.  '       . 


CONSTITUTIONAL  JURISPRUDENCE.  161 

in  civil  cases.  He  considered  the  parties  not  less  inter- 
ested in  the  operation  of  this  unconstitutional  law,  than 
if  it  had  affected  their  property  ;  nor  less  entitled  to  the 
protection  of  the  General  Government  when  the  judg- 
ment of  the  State  Court  affected  their  personal  liberty, 
and  inflicted  a  disgraceful  punishment.  The  Court, 
therefore,  ordered  the  proceedings  against  the  mission- 
aries to  be  annulled,  and  that  they  should  be  released 
from  their  imprisonment.  The  special  mandate  issued 
to  the  Court  below  to  carry  that  judgment  into  effect, 
was  not  obeyed,  and  compulsory  proceedings  were  in 
progress  to  enforce  it,  when  the  matter  was  compro- 
mised by  the  discharge  of  the  missionaries  upon  their 
withdrawing  the  suits  they  had  commenced  against  the 
State  officers  for  their  detention. 

In  order  to  give  the  Supreme  Court  jurisdiction  in  a 
case  brought  before  it  on  a  writ  of  error,  or  an  appeal 
from  a  State  Court,  three  things  must  concur,  viz :  — 

1.  The  validity  of  a  statute  of  the  State  must  be 
drawn  in  question. 

2.  It  must  be  drawn  in  question  on  the  ground  that 
it  is  repugnant  to  the  Constitution,  Laws,  or  Treaties 
of  the  United  States. 

3.  The  decision  of  the  State  Court  must  be  in  favor 
of  the  validity  of  such  statute. 

Where,  therefore,  the  decision  of  the  State  Court  is 
against  the  validity  of  the  statute,  the  Supreme  Court 
of  the  United  States  has  no  jurisdiction.^  Neither  has 
it  jurisdiction  to  revise  the  judgment  of  a  State  Court, 
when  the  only  questions  involved  in  the  case  depend  on 
the  construction  and  validity  of  a  State  law.^     Nor  has 

1  14  Peters,  56  ;  5  Howard,  64,  343  ;  5  Peters,  505  ;  16  Ibid.  149. 
■      2  11  Peters^  167. 


152  LECTURES   ON 

it  authority  to  declare  a  State  law  void  on  account  of 
its  collision  with  the  State  Constitution.^ 

In  a  former  case,  the  Supreme  Court  had  observed 
that  if  the  State  Legislatures  might  annul  the  judg- 
ments of  the  Courts  of  the  United  States,  and  the 
rights  thereby  acquired,  the  Constitution  becomes  a 
solemn  mockery,  and  the  Nation  would  be  deprived  of 
the  means  of  enforcing  its  laws  by  its  own  tribunals. 
So  fatal  a  result  must  be  deprecated  by  all ;  and  the 
People  of  every  State  must  feel  a  deep  interest  in  re- 
sisting principles  so  destructive  to  the  Union,  and  avert- 
ing consequences  so  fatal  to  themselves.^ 

If  two  citizens  of  the  same  State,  in  a  suit  in  a  State 
Court,  claim  title  under  the  same  Act  of  Congress,  the 
Supreme  Court  of  the  United  States  has  appellate 
jurisdiction  to  revise  the  judgment  or  decree,  under  the 
twenty-fifth  section  of  the  Judiciary  'Act  of  1789 ;  upon 
the  ground  that  the  Act  intended  to  give  the  Court  the 
power  of  rendering  uniform  the  construction  of  the 
laws  of  the  United  States,  and  the  decisions  upon  the 
rights  or  titles  claimed  under  those  laws.^ 

The  Supreme  Court  is  also  clothed  with  that  super- 
intending authority  over  the  subordinate  Courts  of  the 
United  States,  which  should  always  be  deposited  in  the 
highest  tribunal  and  last  resort  of  the  People  for  Justice. 
It  has  power  to  issue  prohibitory  writs  to  the  District 
Courts  when  proceeding  as  Courts  of  Admiralty  and 
maritime  jurisdiction ;  and  mandatory  process  in  cases 
warranted  by  the  principles  and  usages  of  law,  to  any 
Courts  established,  or  persons  holding  office  under  the 

I  8  Peters,  280. 
8  12  Ibid.  357. 
3  4  Cranch,  382  ;  2  Cond.  Rep.  149. 


CONSTITUTIONAL  JURISPRUDENCE.  153 

authority  of  the  United  States.  The.  Supreme  Court, 
and  all  the  Federal  Courts,  have  power  to  issue  all 
writs,  not  specially  provided  by  statute,  which  may  be 
necessary  for  the  due  exercise  of  their  respective  juris- 
dictions, and  conformable  to  the  principles  and  usages 
of  law  ;  and  the  individual  Judges  of  all  of  them  may, 
by  writ  of  Habeas  Corpus,  relieve  all  persons  from  all 
manner  of  unjust  imprisonment  or  restraint  occurring 
under  or  by  color  of  the  authority  of  the  United  States. 
But  the  Supreme  Court  has  no  original  jurisdiction  to 
award  this  writ  to  bring  up  the  infant  child  of  a 
Petitioner  alleged  to  be  unlawfully  detained  from  him.^ 
The  jurisdiction  exercised  by  the  Court  upon  the  re- 
turn of  the  writ,  is  clearly  appellate,  being  the  revision 
of  a  decision  of  an  inferior  Court  by  which  a  citizen 
has  been  committed  to  prison.  The  question  brought 
forward  on  the  Habeas  Corpus  is  always  distinct  from 
that  involved  in  the  cause  itself.  The  question  whether 
an  individual  shall  be  imprisoned,  is  distinct  from  the 
question  whether  he  shall  be  convicted  or  acquitted  of 
the  charge  upon  which  he  is  to  be  tried,  and,  therefore, 
may  be  decided  by  different  Courts ;  and  as  the  decision 
that  the  individual  shall  be  imprisoned  must  always 
precede  the  application  for  his  discharge,  the  jurisdiction 
exercised  by  the  Supreme  Court  must  be  of  an  appel- 
late, and  not  of  an  original  character^  which  is  not 
conferred  by  the  Constitution.^  This  jurisdiction,  there- 
fore, is  not  affected  by  the  circumstance  that  the  com- 
mitment was  made  by  a  Court  having  power  to  commit 
and  bail ;  ^  and  the  Supreme  Court  may  award  the  writ 

1  2  Howard,  65. 

2  4  Crunch,  75 ;  2  Cond.  Rep.  33  ;  5  Ibid.  225  ;  7  Wheat.  38. 

3  3  Dall.  17. 


154  LECTURES   ON 

to  revise  the  effect  of  the  process  of  a  Circuit  Court  of 
the  United  States,  under  which  a  prisoner  is~detained. 

Although  the  prohibition  in  the  Constitution  against 
the  imposition  of  excessive  fines  is  mandatory  upon  the 
Courts  of  the  United  States,  yet  the  Supreme  Court 
cannot  reverse  such  a  sentence,  notwithstanding  the 
excess  of  the  fine  may  be  apparent  upon  the  face  of  the 
record.  It  cannot,  therefore,  on  a  Habeas  Corpus,  dis- 
charge a  prisoner  in  custody  for  non-payment  of  such 
fine.  Nor  will  it  grant  a  Habeas  Corpus  ad  subjiciendum 
where  a  party  has  been  committed  for  a  contempt  by 
a  Court  of  competent  jurisdiction.  The  laws  of  the 
United  States  have  not  confided  to  the  Supreme  Court 
an  appellate  jurisdiction  for  the  trial  of  criminal  cases ; 
and  it  has  no  authority  to  exercise  it  indirectly.  It 
holds,  as  we  have  seen,  that  there  is  always  a  distinc- 
tion between  the  question  brought  before  it  on  a  Habeas 
Corpus,,  and  that  involved  in  the  trial ;  but  there  is  no 
distinction  between  the  case  of  a  contempt,  and  an 
application  for  the  writ  after  judgment  upon  an  indict- 
ment for  an  offence  within  the  jurisdiction  of  the  same 
Courts.  For  when  a  party  is  committed  for  contempt, 
the  adjudication  of  the  Court  is  a  conviction,  and  the 
commitment  in  consequence  of  it,  is  an  execution  of 
the  judgment. 

Thus  was  the  law  settled  in  England,  in  the  cele- 
brated case  of  Brass  Crosby,  Lord  Mayor  of  London,^ — 
an  authority  approved  by  the  Supreme  Court.^  In  the 
equally  famous  case  of  Thomas  W.  Dorr,  who  had 
been  convicted  of  treason  against  the  State  of  Rhode 
Island,  and  sentenced  by  a  Court  of  that  State  to  im- 

»  3  Wih.  188.  8  7  Wheat.  38. 


CONSTITUTIONAL  JURISPRUDENCE.  155 

prisonment  for  life,  the  Supreme  Court  of  the  United 
States  held  that  it  had  no  power  to  grant  the  writ  of 
Habeas  Corpus^  as  it  possessed  no  jurisdiction  of  the 
subject  derived  from  the  Common  Law.  It  was  not  a 
case,  either,  in  which  the  Constitution  had  conferred 
upon  the  Court  original  jurisdiction  ;  and,  under  the 
provisions  of  the  Judiciary  Act,  the  only  case  where 
any  Court  or  Judge  of  the  United  States  could  issue 
the  writ  to  bring  up  a  prisoner  in  custody  under  a 
sentence  or  execution  of  a  State  Court,  was  where  he 
was  to  be  used  as  a  witness.  It  is  immaterial  whether 
the  imprisonment  be  under  civil  or  criminal  process. 
As  the  law  stands,  an  individual  in  custody  under  the 
authority  of  a  State  is  beyond  the  reach  of  the  Federal 
Courts,  although  he  may  be  indicted  before  them  for 
treason  against  the  United  States.^ 

The  Judiciary  Act  authorizes  the  Supreme  Court,  as 
we  have  seen,  to  issue  writs  of  prohibition  to  the  Dis- 
trict Courts  when  proceeding  as  Courts  of  admiralty 
and  maritime  jurisdiction,  and  writs  of  Mandamus  in 
cases  warranted  by  the  principles  and  usages  of  law, — 
to  any  Courts  appointed,  or  persons  holding  office, 
under  the  authority  of  the  United  States  ;  and  it  should 
be  noted,  that  a  Mandamus  to  an  inferior  Court,,  is  in 
the  exercise  of  appellate  jurisdiction, — to  an  officer,  in 
that  of  original  jurisdiction.^ 

But  a  Superior  Court  will  never  by  Mandamus  direct 
in  what  manner  the  discretion  of  an  inferior  one  shall 
be  exercised  ;  although,  in  a  proper  case,  it  will  require 
it  to  decide.     The  writ  in  question  is  subject  to  the 

1  3  Howard,  103. 

2  12  Wheat.  561  ;  6  Cond.  Rep.  644. 


156  LECTURES   ON 

discretion  of  the  Court,  and  should  not  be  issued  in  cases 
of  doubtful  right.  It  is,  however,  the  only  adequate 
relief  where  an  inferior  tribunal  refuses  to  act  upon  a 
subject  properly  brought  before  it.^  And  although  the 
Supreme  Court  will  not  order  an  inferior  one  to  render 
judgment  for  or  against  either  party,  yet,  in  a  proper 
case,  it  will  order  it  to  proceed  to  judgment.^  Should 
the  Court  before  whom  a  case  ripe  for  judgment  is 
pending,  perseveringly  refuse  to  terminate  the  cause, 
the  Supreme  Court,  without  indicating  the  character  of 
the  judgment,  would  order  the  rendition  of  some  judg- 
ment ;  but  to  justify  such  a  mandate,  a  plain  case  of 
refusing  to  proceed  by  the  inferior  Court  must  be  made 
out.3 

The  Supreme  Court  has  no  power  from  the  Consti- 
tution,— nor  can  Congress  confer  it, — to  grant  a  new 
trial  in  a  Court  below,  by  a  reexamination  of  facts  tried 
by  a  Jury ;  as  it  would  violate  that  part  of  the  seventh 
Amendment  of  the   Constitution  which   declares  that 

I  6  Peters,  661. 

a  8  Ibid.  291. 

3  The  Circuit  Court  of  the  United  States  for  the  District  of  Colum- 
bia has  a  right  to  award  a  Mandamus  to  an  officer  of  the  United  States, 
to  enforce  the  performance  of  a  merely  ministerial  act  ■which,  he  has 
no  authority  to  deny  or  control ;  or  where  there  is  no  room  for  the 
exercise  of  discretion,  official,  or  otherwise.  But,  in  such  cases,  the 
writ  issues  in  virtue  of  the  Common  Law,  as  it  was  in  force  in  Mary- 
land when  the  cession  of  that  part  of  the  State,  now  within  the 
District  of  Columbia,  was  made  to  the  United  States  ;  and  it  must  be 
considered  as  it  was  at  Common  Law,  with  respect  to  its  object  and 
purpose,  varying  only  in  form  as  required  by  the  different  characters 
of  the  Governments  of  the  United  States  and  England.  A  Mandamus 
will  not  lie  against  the  Secretary  of  the  Treasury,  at  the  instance  of 
an  officer  to  enforce  the  payment  of  his  pay.    6  Howard^  92. 


CONSTITUTIONAL  JURISPRUDENCE.  157 

"  no  fact  tried  by  a  Jury  shall  be  otherwise  reexaminable 
in  any  Court  of  the  United  States,  than  according  to 
the  rules  of  the  Common  Law."  The  only  modes 
known  to  the  Common  Law  for  reexamining  such  facts, 
are  the  granting  a  new  trial  by  the  Court  in  which  the 
issue  was  joined,  or  to  which  the  record  was  properly 
returnable ;  and  by  the  award  of  a  venire  facias  de  novo 
by  an  appellate  Court,  for  some  error  of  law  intervening 
in  the  proceedings.^ 

To  sustain  the  appellate  jurisdiction  of  the  Supreme 
Court,  under  the  Judiciary  Act  of  1789,  the  value  in 
controversy  must  exceed  two  thousand  dollars ;  and  to 
ascertain  that  value,  recourse  must  be  had  to  the  foun- 
dation of  the  original  suit,  or  the  matter  in  dispute 
when  it  was  instituted.  Where  the  law  gives  no  rule, 
the  demand  of  the  plaintiff  must  furnish  one.  But 
where  the  law  gives  the  rule,  the  legal  cause  of  action, 
and  not  the  plaintiff's  demand,  must  be  regarded.^  If 
the  judgment  of  the  Court  below  be  for  the  plaintiff, 
that  judgment  ascertains  the  value  of  the  matter  in 
dispute ;  but  where  the  judgment  below  is  for  the  de- 
fendant, the  Supreme  Court  has  not  fixed  the  mode  of 
ascertaining  the  value.^  It  may,  however,  be  presumed 
that,  as  in  the  case  where  the  plaintiff's  demand  gives 
no  rule,  recourse  may  be  had  to  the  foundation  of  the 
controversy,  so,  in  the  case  of  the  defendant,  recourse 
may,  in  like  manner,  be  had  to  the  value  of  the  matter 
in  dispute  when  the  suit  was  instituted.* 

But,  notwithstanding  the  cases  cited  in  the  margin, 

1  3  Peters,  433. 

2  3  j)all.  401  ;  1  Cond.  Rep.  105.      ■ 

3  1  Cranch,  13;  2  Cond.  Rep.  103. 
*  See  cases  last  cited. 

14 


158  LECTURES   ON 

according  to  the  practice  since  established  by  the  Su- 
preme Court,  its  jurisdiction,  in  this  respect,  depends 
upon  the  sum  or  value  in  dispute  between  the  parties, 
as  the  case  stands  upon  the  writ  of  error  in  that  Court. 
Whatever  may  have  been  the  amount  claimed  by  the 
plaintiff  in  the  Court  below^,  if  the  judgment  in  his  favor 
is  for  less  than  two  thousand  dollars,  and  the  writ  of  error 
is  sued  out  by  the  defendant  below,  the  Supreme  Court 
has  no  jurisdiction.  But  if  the  writ  of  error  be  brought 
by  the  plaintiff  below,  provided  the  amount  claimed  in 
his  declaration  exceed  two  thousand  dollars,  the  Court 
has  jurisdiction,  because,  should  the  judgment  be  re- 
versed, he  may  still  recover  what  he  claimed.^  But  this 
appellate  jurisdiction  is  not  limited  by  the  value  of  the 
matter  in  dispute  in  cases  arising  under  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States ;  and  it 
extends  to  a  case  where  both  parties  claim  a  right 
under  the  same  Act  of  Congress,  and  the  decision  is 
against  the  right  or  title  claimed  by  either.^ 

There  is  no  mode  of  proceeding  by  which  the  Fed- 
eral Government  can  bring  into  review  the  decisions  of 
the  Supreme  Court  upon  a  question  of  boundary  be- 
tween two  States.  Justice  therefore  requires  that  the 
United  States,  which  represent  the  rights  and  interests 
of  the  other  States,  should  have  an  opportunity  of 
being  heard  before  the  boundary  is  established.  The 
Attorney-General  files  an  Information,  stating  that  the 
interests  of  the  United  States  are  involved  in  the 
establishment  of  the  boundary  line,  and  has  a  right  to 
appear,  and  adduce  proofs  in  support  of  the  boundary 
claimed  by  them  to  be  the  true  one,  and  to  be  heard  on 

1  2  Howard,  73  ;  16  Peters,  234. 

2  8  Wheat.  312  ;  5  Cond.  Rep.  445. 


CONSTITUTIONAL  JURISPRUDENCE.  159 

the  argument.  The  United  States  will  not  by  this 
proceeding  become  a  party  in  a  technical  sense,  and  no 
judgment  will  be  rendered  for  or  against  them.  But 
the  evidence  and  arguments  offered  in  their  behalf  will 
be  considered  by  the  Court  in  deciding  the  matter  in 
controversy.^ 

The  power  vested  in  Congress  of  creating  Courts  of 
inferior  jurisdiction,  necessarily  implies  the  power  of 
limiting  the  jurisdiction  of  those  Courts  to  particular 
objects ;  and  when  such  a  Court  is  created,  and  its 
operations  defined,  it  can,  with  no  propriety,  assume  to 
itself  a  more  extended  jurisdiction,  which  might  be 
indefinite  in  its  nature,  applicable  to  a  variety  of  sub- 
jects, varying  in  every  State  in  the  Union,  and  with 
regard  to  which,  there  may  be  no  definite  criterion  of 
distribution  between  the  several  inferior  Courts  which 
might  be  created.^ 

Under  the  power  granted  for  the  purpose  by  the 
Constitution,  two  descriptions  of  inferior  Courts,  differ- 
ing materially  in  the  nature  and  extent  of  their  respec- 
tive jurisdictions,  have  been  established  by  Congress. 
The  United  States,  exclusive  of  the  District  of  Columbia, 
are  divided  by  law  into  a  number  of  Judicial  Circuits, 
corresponding  with  the  number  of  the  Judges  of  the 
Supreme  Court, —  each  "  Circuit"  consisting  of  one  or 
more  Districts.  Each  "  District,"  for  the  most  part, 
comprises  an  entire  State  ;  but  some  of  the  larger  and 
more  populous  States  are  divided  into  two  Districts. 

1  17  Howard,  ilS. 

2  7  Cranch,  32;  2  Cond.  Rep.  405.  The  plaintiff  in  the  Supreme 
Court  may  assign  as  error  his  own  admissions  in  the  pleadings  in  the 
Court  below,  jvhen  they  go  to  the  jurisdiction.  2  Cranch,  126;  1 
Cond.  Rep.  370. 


160  LECTURES   ON 

Some  Districts  are  not  embraced  within  any  Circuit, 
and  have  only  "  District  Courts,"  which,  however,  are 
invested  with  the  powers  of  a  "  Circuit  Court,"  within 
their  respective  Districts,  except  in  cases  of  error  and 
appeal.  In  the  "  District  of  Columbia,"  which  consists 
of  the  territory  ceded  to  the  United  States  for  the  seat 
'of  the  General  Government,  there  is  both  a  Circuit  and 
a  District  Court  specially  and  differently  organized  for 
that  District.  The  former  is  composed  of  a  Chief 
Justice  and  two  associate  Judges,  from  whose  decisions 
writs  of  error  and  appeals  lie  to  the  Supreme  Court  of 
the  United  States.  The  jurisdiction  vested  in  these 
Courts  respectively,  corresponds  with  that  of  the  Cir- 
cuit and  District  Courts  established  throughout  the 
States, — which  we  now  proceed  to  explain. 

II.  The  Circuit  Courts  of  the  United  States 
aie  held  annually,  or  oftener,  in  each  District,  by  a 
Justice  of  the  Supreme  Court  assigned  by  law  to  the 
particular  Circuit,  and  the  Judge  of  the  District  for 
which  the  Court  is  held.  But  the  Supreme  Court  may, 
in  cases  where  special  circumstances  render  it,  in  their 
judgment,  necessary,  assign  two  Justices  of  the  Supreme 
Court  to  attend  the  Circuit  Court.  It  was  once  made 
a  question  whether  the  Justices  of  the  Supreme  Court 
could  sit  as  Circuit  Judges  without  a  distinct  commis- 
sion, but  it  was  decided  that  they  might  lawfully  do  so, 
as  a  contemporaneous  construction  of  the  Constitution, 
acquiesced  in,  and  practised  from  the  first  organization 
of  the  Judiciary  system,  had  fixed  the  construction.* 

If  a  vacancy  happen  by  the  death  of  the  Justice  of 
the  Supreme  Court  to  whom  the  Circuit  is  allotted,  the 

1  1  Cranch,  299  ;  1  Cond.  Rep.  316. 


CONSTITUTIONAL  JURISPRUDENCE.  161 

District  Judge  may,  under  the  Act  of  Congress,  dis- 
charge all  the  duties  of  the  Circuit  Court  for  his  Dis- 
trict, except  that  he  cannot  sit  upon  a  writ  of  error,  or 
upon  an  appeal  from  his  own  Court ;  and  where  the 
District  Judge  is  absent,  or  has  been  of  counsel,  or  is 
interested  in  the  cause,  the  Circuit  Court  may  be  holden 
by  the  Justice  of  the  Supreme  Court  alone.^  K  an 
opposition  of  opinions  between  the  Justice  of  the  Su- 
preme Court  and  the  District  Judge  occur  in  a  case  in 
which  the  Circuit  Court  has  original  jurisdiction,  the 
point  on  which  they  disagree  is  directed  by  law  to  be 
certified  to  the  Supreme  Court;  whereupon  the  cause 
is  removed  into  that  Court  for  final  judgment  or  decree. 
But  in  all  cases  of  appeal  or  removal  firom  a  District 
to  a  Circuit  Court,  judgment  is  to  be  rendered  in  the 
latter  according  to  the  opinion  of  the  Justice  of  the 
Supreme  Court,  presiding  at  the  Circuit.  A  division 
of  opinion  between  the  Judges  of  the  Circuit  Court  on 
a  motion  for  a  new  trial,  is  not,  however,  such  an  one  as 
is  required  to  be  certified  to  the  Supreme  Court  for  its 
decision,  under  the  sixth  section  of  the  Judiciary  Act 
of  1802.^  Nor  can  the  Supreme  Court  take  jurisdiction 
of  a  question  upon  which  the  opinions  of  the  Judges 
of  a  Circuit  Court  are  opposed  to  each  other,  where 
the  division  of  opinion  arises  upon  some  proceeding 
subsequent  to  the  decision  of  the  cause  in  that  Court.^ 
I  But  where  the  whole  cause,  and  not  a  point,  or  points 
arising  in  it,  is  adjourned  to  the  Supreme  Court  on  a 

1  Where  the  District  Judge  does  not  judicially  sit  in  a  cause  in  the 
Circuit  Court,  he  is  considered  absent  in  contemplation  of  law,  although 
he  be  personally  present  on  the  beach.     3  Doll.  19. 

2  6  Wheat.  542;  5  Cond.  Rep.  134. 

3  3  Wheat,  600 ;  4  Cond.  Rep.  522. 

14* 


162  LECTURES   ON 

certificate  of  division  of  opinion,  the  case  will  be  re- 
manded to  the  Circuit  Court.  Congress  intended  to 
provide  for  divisions  of  opinion  upon  single  points, 
which  frequently  occur  in  the  trial  of  a  cause,  and  not 
to  enable  a  Circuit  Court  to  transmit  an  entire  cause 
to  the  Supreme  Court  before  a  final  judgment  of  the 
former.  A  construction  authorizing  such  a  transfer, 
would  counteract  the  policy  which  forbids  writs  of  error 
or  appeals,  until  the  judgment  or  decree  of  the  Court 
below  be  final.  If  an  interlocutory  judgment  or  decree 
could  be  brought  into  the  Supreme  Court,  the  same 
case  might  again  be  brought  up  after  a  final  decision  in 
the  Circuit  Court,  and  all  the  delay  and  expense  inci- 
dent to  a  repeated  revision  of  the  same  cause  would 
be  incurred.  So,  if  the  whole  cause,  instead  of  an 
insulated  point,  could  be  adjourned,  the  judgment  or 
decree  finally  given  by  the  Circuit  Court,  might  be 
again  brought  up,  and  the  whole  subject  reexamined. 
Were  the  Supreme  Court,  moreover,  to  decide  the  case 
upon  such  a  certificate  of  division  of  opinion,  it  would 
be  the  exercise  of  original,  rather  than  appellate  juris- 
diction.^ 

The  Circuit  Courts,  organized  as  stated,  are  invested 
with  original  and  exclusive  jurisdiction,  —  except  in 
certain  cases  hereafter  mentioned, — of  all  crimes  and 
offences  cognizable  under  the  authority  of  the  United 
States,  exceeding  the  degree  of  ordinary  misdemeanors,^ 

*  4  Peters,  392;  9  Ibid.  297;  12  Ibid.  238. 

2  Under  this  provision,  the  Circuit  Courts  of  the  United  States 
take  cognizance  of  crimes  committed  on  the  high  seas.  A  vessel 
lying  in  the  open  roadstead  of  a  foreign  country,  is  upon  the  "  high 
seas,"  -within  the  eighth  section  of  the  statute.  5  Wheat.  200  ;  1  Gall. 
624 ;  2  Sumn.  482.     But  see  contra,  as  to  ofiences  committed  in  a 


CONSTITUTIONAL  JURISPRUDENCE.  163 

and  of  those  they  have  concurrent  jurisdiction  with  the 
District  Courts.  They  have  original  cognizance,  con- 
currently with  the  Courts  of  the  several  States,  of  all 
suits  of  a  civil  nature  at  Common  Law,  or  in  Equity, 
where  the  matter  in  dispute  exceeds  a  certain  specified 
sum,  and  the  United  States  are  plaintiffs,  or  an  alien  is 
a  party,  or  the  suit  is  between  a  citizen  of  the  State 
where  it  is  brought,  and  a  citizen  of  another  State. 
But  when  both  parties  are  aliens,  the  Courts  of  the 
United  States  have  no  jurisdiction ;  and  a  citizen  of 
the  District  of  Columbia  is  not  a  citizen  of  a  State, 
in  the  sense  of  the  Constitution,  and  entitled  to  sue,  as 
such,  in  the  Federal  Courts.*  And  in  relation  to  aliens, 
it  should  be  noted,  that  they  have  a  right  to  sue  only 
while  peace  exists  between  their  country  and  ours. 
For  if  war  break  out,  and  they  thereby  become  alien 
enemies,  their  right  to  sue  is  suspended  until  the  return 
of  peace.2 

The  jurisdiction  of  the  Circuit  Courts  having  once 
vested,  in  a  suit  between  citizens  of  different  States, 
cannot  be  devested  by  a  subsequent  change  of  domicile 
of  either  of  the  parties.^  And  where  an  alien  is  a  party, 
or  the  suit  is  between  a  citizen  of  the  State  where  the 

bay  entirely  land-locked  and  enclosed  by  reefs.  4  Mason,  307  ; 
5  Ibid.  290  ;  1  Wash.  C.  C.  463  ;  4  Ibid.  383  ;  4  Dall.  426  ;  1  Sumn. 
168 ;  Bee,  266.  No  -writ  of  error,  or  appeal,  lies  to  the  Supreme 
Court,  from  the  judgment  or  decree  of  a  Circuit  Court  in  a  civil 
action,  which  was  carried  from  the  District  to  the  Circuit  Court,  under 
the  21st  section  of  the  Judiciary  Act  of  1789.  7  Crunch,  168  ;  2  Cond. 
Rep.  424  ;  2  Wheat.  395. 

1  4  Cranch,  46  ;  2  Ibid.  448  ;  1  Cond.  Rep.  444. 

2  1  Kent's  Comm.  64-68. 

3  2  WhecU.  290;  9  Ibid.  537;  5  Cond.  Rep.  666;  8  Peters,  1  ;  12 
Ibid.  165. 


164  LECTURES  ON 

suit  is  brought,  and  a  citizen  of  another  State,^  if  the 
suit  be  joint,  each  distinct  interest  should  be  represented 
by  persons,  all  of  whom  are  entitled  to  sue  or  be  sued 
in  the  Federal  Courts, — that  is,  where  the  interest  is 
joint,  each  of  the  persons  concerned  in  it  must  be  com- 
petent to  sue  or  be  sued  in  those  Courts.^ 

Where  the  plaintiff  is  an  alien,  and  sues  not  in  his 
own  right,  but  as  a  trustee,  if  the  trust  devolve  upon 
him  by  operation  of  law,  the  Courts  of  the  United 
States  entertain  jurisdiction ;  ^  but  not  where  the  trust 
arises  from  the  act  of  a  party  who  could  not  sue  in 
those  Courts.*  Although  in  a  case  between  citizens  of 
the  same  State,  if  the  plaintiff  be  only  a  nominal  party, 
suing  officially  for  the  use  of  an  alien,  the  Federal 
Courts  have  jurisdiction.^  The  jurisdiction  of  the  Court, 
in  other  cases,  has  been  held  to  be  determined  by  the 
condition  of  the  party  who  has  the  legal  interest,  and 
not  by  that  of  the  party  having  simply  a  beneficial 
interest.^ 

The  Circuit  Courts  have  also  original  jurisdiction  in 
Equity,  and  at  Law,  of  all  suits  arising  under  the  Acts 
of  Congress  relative  to  copyrights,  and  the  rights  grow- 
ing out  of  inventions  and  discoveries ;  and  concurrent 


1  The  constitutional  privilege  which  a  citizen  of  one  State  has  to 
sue  the  citizens  of  another,  cannot  be  taken  away  by  the  erection 
of  a  Corporation  by  the  laws  of  the  State  in  which  the  latter  reside. 
The  Corporation  itself  may,  therefore,  be  sued  as  such.  16  Howard^ 
314. 

2  3  Cranch,  267  ;  1  Wheat.  91. 

3  4  Cranch,  306  ;  2  Cond.  Rep.  116  ;  8  Wheat.  642. 

4  6  Cranch,  332. 

5  Ibid.  303. 

6  14  Peters,  293  ;  3  Howard,  374. 


CONSTITUTIONAL  JURISPRUDENCE.  165 

jurisdiction  with  the  District  Courts  of  the  United 
States,  and  with  the  Courts  and  Magistrates  of  the 
several  States,  where  the  United  States,  or  an  officer 
thereof,  sues  under  the  authority  of  an  Act  of  Congress, 
however  small  the  amount,  except  in  cases  of  admiralty 
and  maritime  jurisdiction.^ 

The  Circuit  Courts  of  the  United  States  have  appel- 
late jurisdiction  in  all  final  judgments  and  decrees  of 
the  District  Courts,  only  in  cases  of  admiralty  and 
maritime  jurisdiction ;  and  if  any  suit  be  commenced 
in  a  State  Court,  against  an  alien,  or  by  a  citizen  of 
the  State  in  which  the  suit  is  brought  against  a  citizen 
of  another  State,  the  defendant,  as  we  have  seen,  on 
giving  security,  may  remove  the  cause  to  the  Circuit 
Court  for  the  District  in  which  the  suit  is  brought.^  In 
order  to  maintain  a  suit  in  the  Circuit  Court,  jurisdic- 
tion must  appear  on  the  record ;  as,  if  the  suit  is  be- 
tween citizens  of  different  States,  the  citizenship  of  the 
respective  parties  must  be  set  forth.^  A  citizen  of  a 
"  Territory "  cannot  sue  a  citizen  of  a  State  in  the 
Federal  Courts ;  nor  can  those  Courts  take  jurisdiction 
fi-om  the  circumstance  of  other  parties  being  joined 
who  are  capable  of  suing  in  them  ;  for  the  jurisdiction, 
as  we  have  seen,  cannot  be  sustained  unless  each  indi- 
vidual party  be  entitled  to  claim  it.* 

J  The  Circuit  Courts  have  jurisdiction  in  Writs  of  Right  -where  the 
property  demanded  exceeds  S500  in  value ;  and  if  upon  the  trial  the 
demandant  recover  less,  he  is  not  to  be  allowed  his  costs,  and,  in  the 
discretion  of  the  Court,  may  be  adjudged  to  pay  costs.  8  Crunch^ 
229;  3  Cond.Rep.  179. 

2  5  Peters  y  1. 

3  6  Wheat.  250. 

*  1  Ibid.  91 ;  8  Cond.  Rep.  490. 


IdQ  LECTURES   ON 

An  appeal  from  the  District  to  the  Circuit  Courts,  in 
admiralty  cases,  suspends  the  sentence  altogether  ;  and 
the  matter  is  not  considered  res  judicata  until  the  final 
sentence  of  the  appellate  Court  is  pronounced.^  And 
it  is  the  constant  practice  of  appellate  Courts  of  admi- 
ralty, so  to  modify  the  decree  of  the  inferior  Court,  as 
the  justice  of  the  case  may  seem  to  require, — or,  in 
other  words,  to  render  such  a  decree  as  the  latter  should 
have  done.2 

The  Circuit  Courts  have  no  authority  to  issue  a  Cer- 
tiorari, or  other  compulsory  process  to  the  District  Courts 
for  the  removal  of  causes  from  that  jurisdiction  before  a 
final  decree  or  judgment  is  pronounced  in  the  latter ; 
and,  in  case  of  the  exercise  of  such  power  by  the  former, 
the  District  Court  may,  and  should  refuse  obedience 
to  the  process  ;  and  either  party  to  the  suit  may  move 
the  Circuit  Court  for  a  Procedendo,  after  the  transcript 
of  the  record  is  removed  to  that  Court,  or  pursue  the 
cause  in  the  District  Court,  as  if  the  record  had  not 
been  removed.^  But  if,  instead  of  taking  advantage  of 
this  irregularity,  at  the  proper  time,  and  in  a  proper 
manner,  the  defendant  enters  his  appearance  to  the 
suit  in  the  Circuit  Court,  makes  his  defence,  and  joins 
issue  upon  the  pleadings,  it  is  too  late,  after  a  verdict, 
to  object  to  the  irregularity.  The  Supreme  Court,  as 
we  have  seen,  will  consider  the  suit  as  an  original  one 
in  the  Circuit  Court,  made  so  by  consent  of  parties.* 

The  power  of  the  Circuit  Courts  to  issue  the  writ  of 

1  5  Cranch,  281;  6  Ibid.  329;  3  Peters,  57;  2  Cond.  Rep.  25$; 
Hid.  388. 

2  3  Dall.  54  ;  1  Cond.  Rep.  21. 

3  2  Wheat.  221. 

4  4  Cond.  Rep.  98. 


CONSTITUTIONAL  JUEISPRUDENCE.  167 

Mandamus^  is  confined  exclusively  to  those  cases  in 
which  it  may  be  necessary  to  the  exercise  of  their  juris- 
diction. Had  the  eleventh  section  of  the  Judiciary  Act 
covered  the  whole  ground  of  the  Constitution,  there 
would  be  much  reason  for  exercising  this  power  in 
many  cases  where  some  ministerial  act  is  necessary  to 
the  completion  of  an  individual  right  arising  under  the 
laws  of  the  United  States ;  and  the  fourteenth  section 
would  have  authorized  the  issuing  of  the  writ  for  the 
purpose.  But  although  the  Judicial  power  of  the 
United  States  extends  to  all  cases  arising  under  their 
laws,  Congress  has  not  thought  proper  to  delegate  the 
power  in  question  to  the  Circuit  Courts,  except  in  cer- 
tain specified  cases.^ 

When  we  find  Congress  withholding  from  its  own 
Courts  the  exercise  of  this  controlling  power  over  the 
ministerial  officers  of  the  Government,  the  inference 
clearly  is,  that  all  violations  of  private  right  resulting 
from  the  acts  of  such  officers,  were  meant  to  be  left 
subject  to  actions  for  damages,  or  for  the  recovery  of 
specific  property,  according  to  circumstances,  in  a  Court 
of  competent  jurisdiction. ^  And  inasmuch  as  the  whole 
of  this  power  has  not  been  communicated  by  law  to 
the  Circuit  Courts,  it  remains  a  dormant  power,  not 
yet  called  into  action.^ 

A  Circuit  Court,  although  an  inferior  Court  in  the 
language  of  the  Constitution,  is  not  so  in  the  sense 
which  the  Common  Law  attaches  to  the  term ;  nor  are 
its  proceedings  subject  to  the  narrow  rules  which  apply 


1  7  Cranch,  504  ;  3  Cond.  Rep.  4. 

2  6  Wheat.  591 ;  3  Cond.  Rep.  197. 

3  12  Peters,  524. 


168  LECTUKES   ON 

to  inferior  Courts  of  Common  Law,  or  Courts  of  special 
jurisdiction.  On  the  contrary,  the  Circuit  Courts  of 
the  United  States  are  Courts  of  original  and  durable 
jurisdiction,  and  as  such  entitled  to  liberal  intendments 
in  favor  of  their  powers.  They  are,  nevertheless.  Courts 
of  limited  jurisdiction,  and  have  cognizance,  not  of 
causes  generally, — but  only  of  a  few,  under  special 
circumstances,  amounting  to  a  small  proportion  of  the 
cases  which  an  unlimited  jurisdiction  would  embrace; 
and  the  legal  presumption  is,  that  a  cause  is  without 
their  jurisdiction  until  the  contrary  appears.^ 

III.  The  District  Courts  are  derived  from  the 
same  Constitutional  power  of  Congress  as  the  Circuit 
Courts.  They  hold  annually  four  stated  terms,  and 
special  Courts,  at  the  discretion  of  the  respective 
Judges. 

The  District  Courts  of  the  United  States  have,  ex- 
clusively of  the  State  Courts,  cognizance  of  all  lesser 
crimes  and  offences  against  the  United  States,  com- 
mitted within  their  respective  Districts,  or  upon  the 
high  seas,  and  which  are  punishable  by  fine  and  im- 
prisonment, to  a  small  amount,  and  for  a  short  term. 
They  have,  also,  exclusive  original  cognizance  of  all 
civil  cases  of  admiralty  and  maritime  jurisdiction;  of 
seizures  under  the  impost,  navigation,  and  trade  laws 
of  the  Union,  where  the  seizures  are  made  on  the  high 
seas,  or  in  waters  within  their  District  navigable  fi-om 
the  ocean  by  vessels  of  ten  or  more  tons  burden ;  and 
of  all  suits  for  penalties  or  forfeitures  incurred  under 
those  laws. 


*  A  Circuit  Court  of  the  United    States  has  not  jurisdiction  to 
enjoin  proceedings  in  a  State  Court.    4  Cranch,  179, 


CONSTITUTIONAL  JDRISPRUDBNCB.  169 

They  have,  moreover,  concurrent  jurisdiction  with 
the  Circuit  Courts  of  the  United  States,  and  of  the 
States  Courts,  of  causes  in  which  an  alien  sues  for  the 
violation  of  a  right  accruing  to  him  under  the  Law  of 
Nations,  or  a  treaty  of  the  United  States  ;  and  of  all 
suits  at  Common  Law  in  which  the  United  States  are 
plaintiffs,  and  the  matter  in  dispute  is  of  a  certain 
small  amount.  They  have  jurisdiction,  likewise,  exclu- 
sive of  the  State  Courts,  of  all  suits  against  Consuls, 
or  Vice- Consuls,  except  offences  of  a  higher  degree 
than  those  which  have  been  mentioned.  They  have, 
also,  exclusive  cognizance  of  proceedings  to  repeal 
patents  obtained  surreptitiously,  or  upon  false  sugges- 
tions ;  and  of  complaints,  by  whomsoever  instituted,  in 
cases  of  capture  made  within  the  waters  of  the  United 
States,  or  within  a  marine  league  of  their  coasts. 

By  an  Act  of  Congress  passed  in  1851,  provision  is 
made  for  the  appointment  of  a  board  of  Commissioners 
to  settle  private  land  claims  in  California,  and  for  trans- 
ferring cases  decided  by  them  to  the  District  Court  of 
the  United  States,  by  way  of  appeal.  This  law  was 
held  by  the  Supreme  Court  to  be  constitutional ;  that 
the  board  of  Commissioners  was  not  a  Court  under  the 
Constitution  invested  with  Judicial  powers,  and  that 
the  commencement  of  the  suit  in  the  District  to  which 
it  was  transferred,  must  be  regarded  as  an  original 
proceeding.  It  could,  therefore,  hear  additional  evi- 
dence to  that  adduced  before  the  Commissioners.' 

The  seventh  Amendment  of  the  Constitution  excludes 
the  jurisdiction  of  Admiralty  over  contracts  regulated 
by  Common  Law.^     This  jurisdiction  is  founded,  for 

1  17  Howard,  525.  8  i  Bald.  544. 

15 


170  LBCTURES   ON 

the  most  part,  on  the  subject-matter  of  the  contract, 
and  not  solely  on  the  place  where  it  is  made.^  If  the 
subject-matter  of  the  contract  relate  to  navigation  of 
the  sea,  though  it  may  be  made  on  land,  Admiralty  has 
jurisdiction.^  It  has  jurisdiction,  also,  over  all  roadsteads, 
,  havens,  and  rivers,  which  are  not  within  the  body  of 
a  County.^  As  to  contracts,  their  jurisdiction  depends 
on  the  subject-matter, —  whether  maritime  as  above  ex- 
plained, or  not.  As  to  torts,  it  depends  on  the  locality, 
viz :  whether  committed  on  the  high  seas,  or  in  ports 
within  the  flow  and  reflux  of  the  tide,  or  not.* 

The  Continental  Congress,  before  the  ratification  of 
the  Articles  of  Confederation,  had  authority  to  institute 
a  Court  of  Appeal  in  Prize  causes,  and  invest  it  with 
power  to  revise  and  correct  the  judgments  of  the  State 
Courts  of  Admiralty ;  and  its  decisions  in  cases  falling 
within  its  jurisdiction  were  final  and  conclusive.^    Since 

1  1  Peters's  Adm.  Rep.  231 ;  Gilpin,  477  ;  Paine,  621. 

2  1  Wash,  a  a  453. 

3  1  Dall.49. 

*  2  Gallis,  465  ;  2  Sumn.  1 ;  1  Gilpin,  529.  For  further  cases  on 
the  subject  of  admiralty  and  maritime  jurisdiction,  see  1  Peters's  Adm. 
Rep.GO-67,  78,  87,  97,  233,  244  ;  2  Ibid.28S,  309,  406;  Bee,  51,  116, 
199,  369,  378,  419,  433  ;  Addis.  63  ;  1  Wheal.  96,  238,  402  ;  2  Ibid.  1 ; 
3  Ibid.  246  ;  4  Ibid.  98 ;  8  Ibid.  394  ;  9  Ibid.  362  ;  10  Ibid.  418, 428, 
473;  12  Ibid.  487,611;  5  Peters,  465;  7  ifeirf.  324;  10  Ibid.  118; 
11  Ibid.  175;  1  Dall.  50;  2  Ibid.  118;  3  Ibid.  54,  121,  133,297;  2 
Wend.  64;  1  Gallis.  75;  2  Ibid.  191,  325,  349,  398 ;  2  Cranch,  406  ; 
3  Ibid.  334;  4  Ibid.  2,  112,  320,443  ;  9  Ibid.  102,  289  ;  1  Yeates,  55; 
2  Ibid.  252  ;  1  Mason,  508  ;  3  Ibid.  6,  161,  242  ;  4  Ibid.  380 ;  5  Ibid. 
465  ;  1  Bald.  543-547  ;  Gilpin,  1,  3,  24,  191,  203,  478,  505,  516,  526, 
632;  1  Sumn.  73,  157,  400,  551;  2  Ibid.  589;  1  Wash.  C.  C.  293; 
2  Ibid.  148;  Paine,  620,  671;  17  Amer.  Jur.  51  ;  1  Brock,  383;  4 
Call.  372. 

5  3  Dall.  54 ;  5  Cranch,  115 ;  1  Cond.  Rep.  21  ;  2  Ibid.  202. 


CONSTITUTIONAL  JTIRISPRUDENCB.  171 

the  adoption  of  the  present  Constitution,  the  conse- 
quent abolition  of  the  Courts  of  Admiralty,  and  the 
establishment  under  it  of  the  Federal  Judicial  system, 
every  District  Court  of  the  United  States  possesses  all 
the  powers  of  a  Court  of  Admiralty,  whether  consid- 
ered as  an  Instance  or  a  Prize  Court ;  ^  and  they  may 
sustain  a  libel  to  carry  into  effect  a  decree  of  the 
Continental  Court  of  Appeals,  either  by  enforcing  its 
specific  execution,  or  awarding  damages  for  the  non- 
performance/^ 

The  Courts  of  the  United  States  being  invested  with 
exclusive  original  cognizance  of  all  seizures  by  land  or 
water,  and  of  all  suits  for  penalties  and  forfeitures 
incurred  under  the  laws  of  the  Union,  whenever  a 
revenue  officer  of  the  United  States  has  a  right  to 
seize  for  a  supposed  forfeiture,  the  question  whether 
that  forfeiture  has  been  incurred,  belongs  exclusively 
to  the  Federal  Courts,  and  cannot  be  drawn  to  another 
forum.  And  it  depends  on  the  final  decree  of  those 
Courts,  proceeding  in  rem,  whether  the  seizure  is  to  be 
adjudged  rightful,  or  not.  If  sentence  of  condemnation 
be  pronounced,  it  is  conclusive  that  such  forfeiture  has 
been  incurred ;  if  sentence  of  acquittal,  that  is  equally 
conclusive  against  the  forfeitures  having  been  incurred, 
and,  in  neither  case,  can  the  question  be  litigated  else- 
where.2 

As  questions  of  prize  belong  exclusively  to  Courts 
of  Admiralty,  Courts  of  Common  Law  have  no  juris- 
diction to  determine  them ;  where  property,  therefore, 

1  Act  of  Conf.  IX.,  Sect.  i. 

2  3  Dall  6,  54 ;  1  Cond.  Rep.  10,  21 ;  2  /6ic?.  4;  8  Pfid.  136  ;  4 
Ihid.  322;  4  Crunch,  2;  8  Ibid.  110 ;  3  Wheat.  646. 

3  3  Wheat.  346 ;  2  Ibid.  1  ;  4  Cond.  Rep.  1,  244. 


172  LECTUKES   ON 

has  been  captured  as  prize,  no  action  lies  at  Common 
Law,  before  adjudication,  to  recover  it  from  any  person 
into  whose  hands  it  may  have  fallen.^  And  where  pro- 
vision is  made  for  a  forfeiture  under  the  laws  of  the 
United  States,  no  State  authority  can  interfere  to  take 
possession  of  the  property  seized,  and  prevent  the  exer- 
cise of  exclusive  jurisdiction  by  the  Federal  Courts ; 
and  if  the  property  be  wrongfully  withdrawn,  those 
Courts  may  enforce  its  redelivery .'^ 

The  District  Courts,  however,  have  no  jurisdiction  to 
entertain  a  suit,  by  way  of  libel,  to  enforce  the  payment 
of  duties.  The  revenue-jurisdiction  of  those  Courts, 
proceeding  in  rem,  extends  only  to  cases  of  seizure  for 
forfeiture  under  the  laws  of  impost,  navigation,  and 
trade.^  But  proceeding  as  Courts  of  admiralty  and 
maritime  jurisdiction,  they  have  cognizance  of  maritime 
torts  in  personam,  as  well  as  in  rem ;  and  though  the 
trespass  complained  of  were  piratical,  the  civil  remedy 
does  not  merge  in  the  crime.  "Whatever  may  have  been 
the  barbarous  doctrine  of  antiquity  about  converting 
goods  piratically  taken  into  droits  of  admiralty,  the 
day  has  long  gone  by  since  it  gave  way  to  a  more 
rational  and  equitable  rule  ;  and  the  party  dispossessed 
is  now  sustained  in  his  remedy  to  reclaim  the  property 
as  not  devested  by  the  piratical  capture.  If  the  party 
may  thus  recover  his  property,  there  is  no  reason  why 
he  should  not  recover  the  value  of  it  from  any  goods 
of  the  offender  within  reach  of  the  Admiralty  Courts. 
The  doctrine  of  merger  has,  indeed,  no  application  to 


1  3  Doll.  19  ;  1  Cond.  Rep.  13. 

2  2  Wheat.  1  ;  3  Ibid.  246 ;  6  Cond.  Rep.  593. 

3  12  Wheat.  486  ;  6  Cond.  Rep.  693. 


CONSTITUTIONAL  JURISPRUDENCE.  178 

such  a  case,  for  even  at  Common  Law,  it  was  confined 
to  felonies  ;  and  piracy  was  not  deemed  felony  by  that 
code.^ 

The  Admiralty  and  maritime  jurisdiction  granted  to 
the  Federal  Government  is  not  limited  to  tide  waters  ; 
but  extends  to  all  public  navigable  lakes  and  rivers 
where  commerce  is  carried  on  between  different  States, 
or  with  a  foreign  nation.  And  the  Act  of  Congress, 
extending  the  jurisdiction  of  the  District  Courts  to 
certain  cases  upon  particular  lakes,  and  the  navigable 
waters  connecting  them,  does  not  rest  upon  the  power 
to  regulate  commerce,  but  upon  the  ground  that  those 
lakes  and  waters  are  within  the  scope  of  Admiralty 
jurisdiction,  as  known  and  understood  within  the  United 
States  when  the  Constitution  was  adopted.^  The  Dis- 
trict Courts,  however,  have  no  jurisdiction  over  vessels 
employed  in  purely  internal  navigation,  in  cases  of 
dispute  between  part-owners ;  nor  to  enforce  payment 
of  wages  due  to  the  crew.^ 

The  Courts  of  this  country  have  no  jurisdiction  to 
redress  any  supposed  torts  committed  on  the  high  seas 
on  the  property  of  its  citizens  by  a  cruiser  regularly 
commissioned  by  a  foreign  and  friendly  power,  except 
where  such  cruiser  has  been  fitted  out  in  violation  of 
its  neutrality.  The  injured  neutral  must,  in  other  cases, 
seek  redress  in  the  Courts  of  the  captor.*  Nor  is  the 
jurisdiction  of  the  neutral  Court  enlarged  by  the  fact 


1  10  Wheat.  473 ;  6  Cond.  Rep.  191. 

2  12  Howard,  299. 

3  11  Peters,  175. 

*  10  Wheat.  AlZ;  6  Cond.  Rep.  191. 

15* 


174  LECTURES   ON 

that  the  subject  continues  no  longer  within  the  power 
of  the  captor.^ 

As  the  laws  of  the  United  States  have  made  no  pro- 
vision for  an  appeal  from  the  judgments  or  decrees  of 
the  District  Courts  to  the  Circuit  Courts,  except  in 
cases  of  Admiralty  and  maritime  jurisdiction, —  where 
a  new  jurisdiction  is  conferred  upon  the  former,  and  a 
special  mode  provided  for  its  exercise,  there  is  no  right 
of  appeal  to  the  latter ;  and  if  an  appeal  be  entertained 
in  such  a  case,  by  the  Circuit  Court,  and  its  judgment 
or  decree  be  taken  to  the  Supreme  Court,  that  Court 
will  annul  and  reverse  the  proceedings  of  the  Circuit 
Court  as  wholly  unauthorized,  but  it  can  take  no  fur- 
ther proceeding  in  the  cause ;  it  cannot  remand  it  to 
the  Circuit  Court,  because  the  Circuit  Court  has  no 
jurisdiction ;  and  it  cannot  retain  the  cause  for  further 
proceedings,  because  it  ^an  exercise  no  appellate  juris- 
diction not  conferred  by  statute.^ 

The  grant  of  Admiralty  powers  in  the  Constitution 
to  the  Courts  of  the  United  States,  was  not  intended 
to  be  confined  to  such  cases  as  belonged  to  the  Ad- 
miralty jurisdiction  in  England,  at  the  time  of  the 
adoption  of  that  instrument.  Such  a  limitation  would 
be  inconsistent  with,  the  extent  of  the  Admiralty  juris- 
diction exercised  by  the  Colonies, — with  a  just  inter- 
pretation of  the  Constitution, —  and  with  its  contempo- 
raneous construction,^ 

Where  the  Judge  of  a  District  Court,  acting  in  his 
Judicial   capacity,   has    determined   that  there   is   not 


1  1  Wheat.  228;  6  Cond.Rep.  558. 

2  6  Peters,  AW. 

3  5  Howard,  441. 


CONSTITUTIONAL   JURISPRUDENCE.  175 

sufficient  evidence  to  authorize  him  to  proceed  in  a  case 
before  him,  the  Supreme  Court  will  not,  as  has  been 
already  intimated,  issue  a  mandamus,  and  thus  in  effect 
compel  him  to  decide  contrary  to  the  dictates  of  his 
own  judgment;'  nor  will  it  issue  one  to  compel  him  to 
grant  any  application  resting  in  his  discretion.^  For  a 
Superior  Court  will  never,  as  we  have  seen,  direct  in 
what  manner  the  discretion  of  an  inferior  shall  be  exer- 
cised ;  though,  in  a  proper  case,  it  will  require  it  to 
decide.^ 

The  Judges  of  the  District  Courts  have,  in  cases 
where  the  party  has  not  had  reasonable  time  to  apply 
to  the  Circuit  Court,  as  full  power  as  is  exercised  by 
the  Justices  of  the  Supreme  Court  to  grant  writs  of 
injunction  in  Equity  causes,  to  operate  within  their 
respective  Districts,  and  continue  in  force  until  the  next 
sitting  of  the  Circuit  Court. 

IV.  The  Courts  of  the  "  Territories  "  of  the 
United  States  have  been  created,  from  time  to  time, 
by  the  several  Acts  of  Congress  establishing  Territorial 
Governments  in  those  vast  regions  in  the  western  part 
of  the  continent  which  were  either  ceded  by  individual 
States  for  the  common  benefit,  upon  condition  that  the 
proceeds  of  sales  of  the  public  lands  therein  should  be 
applied  to  the  payment  of  the  national  debt  incurred 
during  the  revolutionary  war,  or  obtained  by  treaty  from 
foreign  powers,  and  never  included  within  the  boun- 
daries of  any  of  the  original  members  of  the  Union. 

1  6  Peters,  216,  661  ;  7  Ibid.  637. 

2  Vide  ante. 

3  It  Las  been  shown  above,  in  treating  of  the  Circuit  Courts,  in 
■what  Districts  the  District  Court  possesses  the  powers  of  a  Circuit 
Court,  and  to  what  extent  they  may  be  exercised. 


176  LECTURES  ON 

These  Territories, —  as  they  are  politically,  as  well  as 
geographically  termed, —  are  not,  in  either  case,  con- 
sidered distinct  political  societies,  known  to  the  Consti- 
tution as  States ;  but  Congress  has  always  assumed  to 
exercise  over  them  supreme  powers  of  sovereignty ;  and 
has  generally  adopted  for  that  purpose  the  principles  of 
the  Ordinance  established  under  the  Confederation,  in 
1787,^  for  governing  the  territory  Northwest  of  the  River 
Ohio,  which  now  contains  the  States  of  Ohio,  Indiana, 
Illinois,  Michigan,  Wisconsin,  and  Iowa,  and  the  Min- 
nesota and  Northwest  Territories.  This  Ordinance  was 
A  formed  upon  sound  and  enlightened  principles  of  civil 
V-)  jurisprudence,  and  the  Judges  appointed  in  that  original 
/  Territory,  held  their  offices  during  good  behavior.  The 
Territory  of  Florida  having  since  been  admitted  as  a 
State,  into  the  Union,  and  California  coming  into  it 
already  organized  as  such,  the  remaining  Territories, 
besides  Minnesota,  and  "  Northwest,"  are  Oregon,  soon 
to  be  admitted  as  a  State,  Washington,  set  off  from  it, 
Nebraska  and  Kansas,  formerly  portions  of  the  French 
-Province  of  Louisiana,  and  New  Mexico  and  Utah, 
acquired  with  California  from  Mexico.  These  are  all 
organized  after  the  model  of  the  Ordinance  of  1787 ; 
and  in  each  of  them,  the  Governor  and  members  of 
the  Legislative  Council,  as  well  as  the  Judges,  are  ap- 
pointed by  the  President  and  Senate,  but  are  removable 
at  the  pleasure  of  the  President,^  but  subject  to  such 
removal,  the  Governor  holds  his  office  for  three  years, 
and  the  Judges  for  four.^ 

^  Appendix  G. 

2  The  power  of  the  President  to  remove  a  Territorial  Judge  has 
been  questioned  and  discussed,  but  not  as  yet  decided.  17  Howard,  284. 

3  The  Legislative  power  in  these  Territories  is  vested  in  the  Grov- 


CONSTITUTIONAL  JURISPRUDENCE.  177 

The  "  Superior  Courts "  in  these  Territories  have 
exclusive  cognizance  of  all  capital  offences,  and  the 
trial  by  Jury  is  secured,  together  with  many  other  great 
fundamental  principles  of  civil  liberty.  They  have, 
within  their  limits,  the  same  jurisdiction,  in  all  cases 
arising  under  the  Constitution  and  laws  of  the  United 
States,  which  is  vested  in  the  District  Courts  of  the 
United  States,  in  those  Districts  in  which  the  latter 
have  the  powers  of  a  Circuit  Court ;  and  writs  of  error 
and  appeals  from  their  decisions  may  be  taken  to  the 
Supreme  Court  of  the  United  States,  in  the  same  cases, 
and  under  the  same  regulations,  as  from  the  Circuit 
Courts  of  the  Union. 

Admiralty  jurisdiction,  as  we  have  seen,  can  be  ex- 
ercised in  the  several  States  in  those  Courts  only  which 
are  established  in  pursuance  of  the  third  Article  of 
the  Federal  Constitution ;  but  this  limitation  does  not 
extend  to  the  Territories.  The  Courts  are  not  constitu- 
tional Courts  in  which  the  Judicial  power  conferred  on 
the  General  Government  by  the  Constitution  can  be 
vested.  They  are  Legislative  Courts  created  in  virtue 
of  the  general  right  of  sovereignty  existing  in  the  Gov- 
ernment of  the  Union,  or  in  virtue  of  that  clause  of 
the  Constitution  which  enables  Congress  to  make  all 
needful  rules  and  regulations  respecting  the  territory 
belonging  to    the    United    States.     Hence    Admiralty 

ernor,  and  a  Legislative  Council  consisting  of  nine  members,  ap- 
pointed by  the  President  and  Senate,  to  continue  in  office  for  five 
years,  and  of  a  House  of  Representatives  chosen  by  the  inhabitants 
biennially.  These  Legislatures  are  prohibited  from  interfering  with 
the  primary  disposal  of  the  soil,  or  from  taxing  land  belonging  to  the 
United  States,  or  from  imposing  higher  taxes  upon  land  belonging  to 
non-resident  proprietors,  than  on  those  of  residents. 


178  LECTURES   ON 

jurisdiction  may  be  vested  in  Courts  created  by  a  Ter- 
ritorial Legislature.^  The  Acts  of  Congress,  therefore, 
vesting  the  Superior  Court  of  a  Territory  with  jurisdic- 
tion in  "  all  cases  arising  under  the  laws  and  Constitu- 
tion of  the  United  States,"  does  not  embrace  cases  of 
Admiralty  and  maritime  jurisdiction. 

From  these  various  regulations,  it  appears  that  Con- 
gress possesses  supreme  power  in  regard  to  all  these 
Territories, —  depending  solely  on  the  exercise  of  its 
sound  discretion.  A  Territory,  no  more  than  the  Dis- 
trict of  Columbia,  is  a  State  within  the  meaning  of  the 
Constitution,  or  entitled  to  claim  the  privileges  secured 
to  the  members  of  the  Union.^  Nor  will  a  writ  of  error, 
or  an  appeal  lie  from  a  Territorial  Court  to  the  Supreme 
Court  of  the  United  States,  unless  there  be  a  special 
statutory  provision  for  the  purpose.^ 

It  was  observed  by  the  late  Chancellor  Kent,  in  his 
valuable  "  Commentaries,"  that,  "  if  the  Government 
of  the  United  States  should  carry  into  execution  the 
project  of  colonizing  the  great  valley  of  the  Oregon 
west  of  the  Rocky  Mountains,  it  would  afford  a  subject 
of  grave  consideration,  what  would  be  the  future  civil 
and  political  destiny  of  that  country.  It  would  be  a 
long  time,"  he  thought,  "  before  it  would  be  populous 
enough  to  be  created  into  one  or  more  independent 
States ;  and  in  the  mean  time,  upon  the  doctrine  taught 
by  the  Acts  of  Congress,  and  the  Judicial  decisions 
of  the  Supreme  Court,  the  colonists  would  be  in  a  state 
of    complete   subordination,   and   as   dependent   upon 

1  1  Peters,  b\\. 

2  2  Cranch,  445  ;  1  Wheal.  91. 

3  1  Cranch,  212;  8  Ibid.  159. 


CONSTITUTIONAL  JURISPRUDENCE.  179 

the  will  of  Congress  as  the  people  of  this  Country 
would  have  been  upon  the  King  and  Parliament  of 
Great  Britain,  if  they  could  have  enforced  their  claim 
to  bind  us  in  all  cases  whatsoever.  Such  a  state,"  he 
continues,  "  of  absolute  sovereignty  on  the  one  hand, 
and  of  absolute  dependence  on  the  other,  is  not  at  all 
congenial  with  the  free  and  independent  spirit  of  our 
native  institutions ;  and  the  establishment  of  distant 
Territorial  Governments,  ruled  according  to  will  and 
pleasure,  would  have  a  very  natural  tendency, — as  all 
proconsular  Governments  have  had,  —  to  abuse  and 
oppression."  ^ 

The  hand  that  traced  these  lines  has  long  lain  cold 
in  death  ;  but  their  learned  and  estimable  author  lived 
to  see  not  only  the  "  project"  they  refer  to  realized  in 
the  organization  of  Oregon  as  a  Territory,  but  the 
establishment  of  Territorial  Governments  in  other  and 
more  remote  portions  of  the  continent,  some  of  which 
had  not  as  yet  been  acquired  ;  and  had  his  already 
lengthened  life  been  prolonged  for  a  few  years  more, 
his  fears  would  have  subsided  as  he  witnessed  the  erec- 
tion of  some  of  those  Territories  into  States.  So  rapid, 
indeed,  has  been  the  increase  and  settlement  of  the 
National  domain,  that  our  political  geography  becomes 
obsolete  at  home,  before  it  is  known  abroad. 

V.  The  State  Courts  and  Magistrates  are,  in 
some  instances,  invested  by  Congress  with  cognizance 
of  cases  arising  under  the  laws  of  the  United  States. 
It  seems,  indeed,  as  we  have  already  had  occasion  to 
mention,  that  Congress,  in  the  course  of  its  legislation 
upon  the  subjects  intrusted  to  it,  may  commit  the  de- 

l  Comm.,  Part  2d,  §  17. 


180  LECTURES   ON 

cision  of  causes  arising  under  a  particular  Act,  solely, 
if  deemed  expedient,  to  the  Courts  of  the  Union  ;  but 
in  every  case  in  which  the  State  Courts  are  not  ex- 
pressly excluded,  they  may  take  cognizance  of  causes 
growing  out  of  an  Act  of  Congress.  And  although 
Congress  cannot  confer  jurisdiction  upon  any  Courts 
but  such  as  exist  under  the  Constitution,  and  its  own 
laws,  yet. the  State  Courts  may  exercise  it  in  cases 
authorized  by  the  laws  of  the  State,  and  not  prohibited 
by  the  exclusive  jurisdiction  of  the  Federal  Courts.' 

Various  duties  have  been  imposed  by  Congress  on 
the  State  Courts  and  Magistrates ;  and  they  have  been 
invested  with  jurisdiction  in  civil  suits,  and  in  com- 
plaints and  prosecutions  for  fines,  penalties,  and  forfeit- 
ures accruing  under  the  laws  of  the  United  States.  In 
civil  suits,  the  State  Courts  entertain  such  jurisdiction  ; 
but  in  criminal  and  penal  cases  they  have,  in  several 
instances,  declined  it.  In  what  cases,  and  to  what  ex- 
tent, they  will  exercise  criminal  jurisdiction  under  the 
laws  of  the  Union,  and  under  what  circumstances,  and 
how  far,  the  Judges  of  the  State  Courts  have  power  to 
issue  a  Habeas  Corpus,  and  decide  on  the  validity  of  a 
commitment  or  detainer  under  the  authority  of  the 
National  Government,  are  questions  which  have  been 
variously  determined  in  the  States,  and  never  defini- 
tively settled  in  the  Supreme  Court  of  the  United 
States,  where  the  ultimate  right  of  determining  them 
resides.^  The  doctrine,  however,  seems  to  be  admitted, 
that  Congress  cannot  compel  a  State  to  entertain  juris- 
diction in  any  case.  It  only  permits  such  of  those 
tribunals  as  are  competent,  and  have  inherent  jurisdio- 

1  5  WhecU.  1.  8  Vide  ante. 


CONSTITUTIONAL  JURISPRUDENCE.  181 

tion  adequate  to  the  case,  to  entertain  such  suits  in 
given  cases  ;  and  they  do  not  thereby  become  Inferior 
Courts  in  the  sense  of  the  Federal  Constitution,  because 
they  are  not  ordained  and  established  by  Congress.^ 
The  State  Courts  are  left  to  consult  their  own  duty, 
from  their  State  authority  and  organization  ;  but  if 
they  do  voluntarily  entertain  jurisdiction  of  causes  cog- 
nizable under  the  authority  of  the  United  States,  they 
*do  it  upon  the  condition  that  the  appellate  jurisdiction 
of  the  Federal  Courts  shall  apply.  Their  jurisdiction 
of  Federal  causes  must,  nevertheless,  be  confined  to 
civil  actions  for  civil  demands,  or  to  enforce  penal 
statutes.  They  cannot  hold  criminal  jurisdiction  over 
ofTences  exclusively  against  the  United  States ;  for  every 
criminal  prosecution  must  charge  the  offence  to  have 
been  committed  against  the  sovereign  whose  Court  sits 
in  judgment  upon  the  offender,  and  whose  authority 
can  pardon  him. 

In  concluding  the  subject  of  the  Judicial  Power,  a 
few  supplementary  observations  upon  the  general  sys- 
tem, gathered  from  the  adjudications  of  the  Supreme 
Court,  seem  to  be  requisite.  The  extent  to  which  the 
modes  of  proceeding  in  the  Courts  of  the  United  States 
are  regulated  by  the  various  State  laws,  is  determined 
by  the  several  Acts  of  Congress  passed  at  different 
times  for  that  purpose.^  Ex  propria  vigore,  they  have 
no  operation  whatever.  They  are  only  obligatory  upon 
the  National  Courts,  so  far  as  they  have  been  adopted 
and  applied  to  them  by  Congress.^     The  section  of  the 

1  14  Johns.  Rep.  95. 

2  In  1789,  1792,  and  1828. 

3  10  Wheat.  1,51;  6  Cond.  Rep.  1,  22  ;  9  Peters,  129  ;  16  Ibid.  89  ; 
1  Howard,  301. 

16 


182  LECTUKES   ON 

Judiciary  Act  of  1789, — which  provides  that  "  the  laws 
of  the  several  States  shall  be  regarded  as  rules  of  de- 
cision in  trials  at  Common  Law,  in  the  Courts  of 
the  United  States,  in  cases  where  they  apply,"  includes 
only  civil  cases  at  Common  Law,  and  not  criminal 
offences  against  the  United  States.  It  has  no  applica- 
tion to  the  practice  of  the  Court,  or  the  conduct  of  its 
officers  in  the  service  of  an  execution.  This  section  is 
merely  the  recognition  of  a  principle  of  universal  law, — ^ 
that  contracts  are  to  be  governed  by  the  law  of  the 
forum,  in  reference  to  which  they  were  made.^ 

The  process  Act  of  1789,  expressly  adopted  the  forms, 
writs,  and  modes  of  process  in  the  State  Courts,  then 
in  use  in  suits  at  Common  Law.  The  Act  of  1792 
adopts  the  forms  of  writs,  executions,  and  other  process, 
and  the  forms  and  modes  of  proceeding  in  Courts  of 
Conamon  Law  then  in  force  in  the  Courts  of  the  United 
States,  under  the  former  Act,  "  subject  to  such  altera- 
tions and  additions  as  the  said  Courts  respectively,  in 
their  discretion,  deent  expedient,  or,  to  such  regulations 
as  the  Supreme  Court  of  the  United  States  shall  think 
proper,  from  time  to  time,  to  prescribe  to  any  Circuit  or 
District  Court,  concerning  the  same."  This  delegation 
of  power  to  the  Judiciary  by  Congress,  is  held  to  be 
"  perfectly  constitutional;" — a  general  superintendence 
over  the  subject  seeming  to  be  properly  within  the 
Judicial  province,  and  having  been  always  so  consid- 
ered.2  The  power  to  alter  and  add  to  the  forms  of 
process,  and  modes  of  proceeding  in  a  suit  embraces 
its  whole  process,  and  every  transaction  in  it  from  its 
commencement  to   its  termination  by  the  satisfaction 

1  10  IMieat.  1.  2  See  cases  last  above  cited. 


CONSTITUTIONAL  JURISPRUDENCE.  183 

of  the  judgment.  Nor  can  such  power  be  limited  to 
formal,  as  contradistinguished  from  substantial  altera- 
tions ;  but  is  to  be  understood  as  vesting  in  the  Courts 
of  the  United  States  authority  to  frame  and  mould 
the  process  so  as  to  adapt  it  to  the  purposes  intended. 
Thus,  these  Courts  may  so  vary  the  effect  and  opera- 
tion of  final  process  as  to  reach  property  not  liable  by 
the  State  laws  as  they  stood  in  1789,  to  be  taken  in 
.execution ;  or  it  may  exempt  property,  not  then,  but 
since  exempted  by  the  State  laws.^ 

The  Act  of  Congress  of  1828,  repeals  all  rules  made 
by  the  Courts  of  the  United  States  for  the  regulation 
of  final  process  in  all  the  Districts,  and  adopts  the 
execution  laws  of  the  several  States,  as  they  then 
stood, —  giving,  however,  to  the  Federal  Courts  power 
to  alter  final  process  by  rules,  so  far  only  as  to  adapt 
the  same  to  any  subsequent  change  of  the  State  law. 
The  effect  of  this  Act  was  to  adopt  the  State  laws 
then  existing,  as  to  bail,  and  exemption  from  arrest  on 
final  process;  and  a  rule  of  a  Circuit  Court  of  the 
United  States,  providing  that  "  no  individual  shall  be 
kept  in  prison  on  mesne  or  final  process,  who  has  been 
released  from  imprisonment  for  such  demand,  by  the 
Insolvent  law  of  the  State,"  is  held  to  be  fully  author- 
ized by  this  Act  of  Congress.^ 

Although  this  power  of  the  Courts  of  the  United 
States,  under  the  Act  in  question,  extends  partially  to 
the  future  legislation  of  the  States,  they  can  adopt  the 
State  law  only  as  the  Legislature  has  made  it.  They 
cannot  adopt  it  in  part,  or  alter  it  in  any  respect.^     Nor 

1  10  Wheat.  51 ;  1  Peters,  604;  13  Ihid.  45. 

2  9  Peters,  329.  3  13  Peters,  45  ;  2  Howard,  608. 


184  LECTURES   ON 

have  the  Federal  Courts  authority  under  the  Act  to 
adopt  by  rule,  any  provision  of  a  State  law  incompati- 
ble with  the  positive  enactments  of  Congress  relative 
to  the  jurisdiction,  practice,  or  proceedings  of  those 
Courts.^ 

No  rule  of  construction  is  better  established,  or  more 
familiar  to  jurists,  than  "  if  two  statutes  conflict  with 
each  other,  the  Courts  must  decide  on  the  operation  of 
each,  and  endeavor,  if  possible,  to  harmonize  their 
provisions."  ^  If  an  Act  of  Congress  admit  of  two  in- 
terpretations, one  of  which  brings  it  within,  and  the 
other  presses  it  beyond  the  constitutional  authority  of 
the  Courts,  they  will  adopt  the  former  construction ;  as 
the  presumption  should  never  be  indulged  that  Con- 
gress meant  to  exercise  or  usurp  any  unconstitutional 
authority, —  unless,  indeed,  that  conclusion  is  forced 
upon  the  Courts  by  language  altogether  unambiguous.^ 

But  in  the  construction  of  State  statutes,  the  Fed- 
eral Courts  are  guided  by  the  decisions  of  those  of  the 
State.  This  course  is  founded  upon  the  principle  uni- 
versally recognized,  that  the  Judicial  department  in 
every  Government  where  such  department  exists,  is  the 
appropriate  organ  for  construing  the  laws.  A  fixed  and 
received  construction  by  a  State  Court  of  its  statute- 
laws,  make  a  part  of  such  laws,  and  must  furnish  the 
rule  of  decision  to  the  Federal  Courts,  so  far  as  is  con- 
sistent wdth  the  Constitution  of  the  United  States, —  in 
all  cases  arising  within  the  State  enacting  them.  And 
it  is  immaterial  whether  the  decisions  of  the  State 
Court  are  grounded  upon  a  statute  of  the  State,  or 

1  16  Peters,  89  ;  2  Howard,  241. 
•2  1  Cranch,  137;  1  Cond.  Rep.  267. 
3  12  Peters,  72. 


CONSTITUTIONAL  JURISPRUDENCE.  185 

form  a  part  of  the  unwritten  law,  which  has  become 
a  fixed  rule  of  property.^  So  where  the  policy  of  a 
State,  on  any  given  subject,  is  manifest  and  settled, 
the  Courts  of  the  United  States  are  bound  to  notice  it 
as  a  part  of  its  code ;  and  to  declare  all  contracts,  made 
in  the  State,  repugnant  to  it,  illegal  and  void.^  The 
evidence,  however,  of  such  a  fixed  policy  must  be  clear, 
before  the  Federal  Courts  will  set  aside  a  contract  on 
the  ground  of  such  a  repugnancy.^ 

The  fourteenth  section  of  the  Judiciary  Act  of  1789, 
which  provides  that  "  the  laws  of  the  several  States, 
except  where  the  Constitution,  statutes,  or  treaties  of 
the  United  States  shall  otherwise  require, —  shall  be 
regarded  as  rules  of  decision  in  trials  at  Common  Law, 
in  the  Courts  of  the  United  States,  in  cases  where 
they  apply,"  has  never  been  applied  to  State  laws, 
not  strictly  local ;  that  is  to  say,  to  none  but  positive 
statute-laws,  and  the  construction  of  them  adopted  by 
the  local  tribunals,  or  rights  and  titles  to  things  having 
a  permanent  locality,  such  as  the  rights  and  titles  to 
real  estate  and  other  matters  immovable  and  intra- 
territorial  in  their  character.  It  does  not  extend  to 
questions  of  a  more  general  nature,  not  at  all  dependent 
upon  local  statutes,  or  usages ;  —  as,  for  example,  to  the 
construction  of  ordinary  contracts,  and  other  written 
instruments,  especially  those  of  a  commercial  nature, — 

»  1  Peters,  351,  476;  5  Ibid.  151;  6  Ibid.  283;  11  Ibid.  1;  12 
Ihid.  32  ;  2  Ibid.  85;  3  Ibid.  127. 

2  5  Cranch,  22;  9  Ibid.,  87  ;  3  Cond.  Rep.  386,  570;  4  Ibid. 
132;  2  Ibid.  179;  5  Ibid.  18;  6  Ibid.  47,  385,  489;  1  Wheat.  115 
279;  2  Ibid.  316  ;  6  Ibid.  119 ;  10  Ibid.  152  ;  11  Ibid.  361 ;  12  Ibid 
153. 

3  15  Peters,  446. 

16* 


186  LECTURES   ON 

which  last  are  to  be  interpreted  upon  the  general  princi- 
ples and  doctrines  of  commercial  jurisprudence. 

The  Courts  of  the  United  States,  under  the  Consti- 
tution and  laws  of  the  Union,  have,  moreover,  Equity 
Jurisdiction;  and  unless  the  general  principles  of  Equity 
have  been  modified  by  the  laws  and  usages  of  a  par- 
ticular State,  those  general  principles  will  be  carried 
out  everywhere  in  the  same  manner ;  and  the  same 
Equity  jurisprudence  prevail  in  all  the  States,  when 
administered  by  the  Federal  Courts.  Hence,  the  de- 
cision of  a  State  Court  in  a  case  which  involved  only 
general  principles  of  Equity,  and  was  not  controlled  by 
local  law  or  usage,  is  not  binding  as  authority  upon  the 
Courts  of  the  United  States.^ 

Equity  jurisdiction  is  conferred  on  the  Federal  Courts 
under  certain  limitations,  under  which  the  usages  of 
the  High  Court  of  Chancery  in  England,  which  have 
been  adopted  by  the  rules  of  the  Supreme  Court,  fur- 
nish the  Equity-law  exercised  by  the  United  States 
Courts  in  all  the  States,  even  in  those  where  no  Chan- 
cery system  exists.  Under  this  system,  therefore,  where 
relief  can  be  given  by  the  English  Chancery,  it  may  be 
given  by  the  Courts  of  the  Union.^ 

Although,  on  all  questions  arising  under  the  Consti- 
tution and  laws  of  the  United  States,  the  Supreme 
Court  may  exercise  a  revising  power,  and  its  decisions 
are  final  and  obligatory  upon  all  other  tribunals, — 
State,  as  well  as  Federal, —  yet  a  State  Court  has  a 
right  to  examine  and  determine  any  such  questions ; 
but  its  decisions  must  conform  to  those  of  the  Supreme 
Court;   otherwise  the   corrective  power   of  the   latter 

1  13  Howard,  268.  2  Ihid.  579. 


CONSTITUTIONAL  JURISPRUDENCE.  187 

must  be  exercised.  The  case,  however,  is  very  different 
when  the  question  arises  under  the  local  law.  In  those 
cases  the  decision  of  the  highest  Judicial  tribunal  of  the 
State  should  be  considered  final  by  the  former, —  not 
because  the  State  Court  has  any  power  to  bind  the 
Federal  tribunal,  but  because,  in  the  language  of  the 
Supreme  Court,  "a  fixed  and  received  construction  by 
a  State,  in  its  own  Courts,  makes  a  part  of  its  statute- 
law."  ^ 

The  same  reason  that  influences  the  Supreme  Court 
in  adopting  the  construction  given  to  a  strictly  local 
law  by  the  State  Courts,  in  the  first  instance,  is  not 
less  strong  in  favor  of  following  it,  should  the  State 
tribunal  change  its  construction,  inasmuch  as  the  rule 
is  settled,  not  by  a  single  adjudication,  but  by  a  series 
of  decisions.  A  refusal  to  adopt  the  change  would 
establish  in  the  State  two  rules  of  property.  And  the 
same  reasons  which  would  render  a  change  in  the  con- 
struction of  a  law  of  the  United  States  by  the  Supreme 
Court  obligatory  upoi^the  State  tribunals,  induce  the 
Courts  of  the  United  States  to  give  effect  to  the  latest 
exposition  of  the  local  law  by  the  State  Courts.  It  is, 
emphatically,  the  law  of  the  States,  which  the  Federal 
Courts,  sitting  within  the  State,  and  the  Supreme  Court, 
when  the  case  is  brought  before  it,  are  called  on  to  en- 
force. For,  if  the  construction  of  the  highest  tribunal 
of  a  State,  forms  a  part  of  its  statute-law,  as  much  as 
an  Act  of  its  Legislature,  the  Courts  of  the  United 
States  can  make  no  distinction  between  them.  The 
Supreme  Court,  therefore,  has  no  hesitation  in  modify- 
ing its  decisions  so  as  to  conform  them  to  any  alteration 

1  II  Wheat.  361. 


188  LECTURES   ON 

of  the  State  law,  and  applying  the  same  rule  where  the 
Judicial  branch  of  the  same  Government,  in  the  exer- 
cise of  its  acknowledged  functions,  gives,  by  construc- 
tion, a  different  aspect  to  a  statute,  from  that  which 
had,  at  first,  been  given  to  it.  The  charge  of  incon- 
sistency might  be  made  with  more  force  and  propriety, 
against  the  Federal  Courts,  for  a  disregard  of  this  rule, 
than  for  conforming  to  it.^ 

Where  the  construction  of  a  will  has  been  settled  by 
the  highest  Court  of  a  State,  and  long  acquiesced  in  as 
a  rule  of  property,  the  Federal  Courts  will,  for  that 
reason,  follow  it.  But  the  mere  construction  by  a  State 
Court  does  not,  like  its  construction  of  a  statute,  con- 
stitute a  rule  of  construction  for  the  Courts  of  the 
United  States.^  Nor  are  they  governed  by  the  decision 
of  a  State  Court  upon  the  construction  of  a  deed,  as 
to  matters  and  language  belonging  to  the  Common 
Law,  and  not  to  any  statute  of  the  State.^ 

Where  English  statutes,  such,  for  instance,  as  the 
statutes  of  limitation,  and  the  statute  of  frauds,  have 
been  ingrafted  into  our  legislation,  the  known  and 
settled  construction  of  those  statutes  by  the  English 
Courts,  has  been,  either  silently  incorporated  in  our 
Codes,  or  received  with  all  the  weight  of  authority.* 
The  rule  uniformly  observed  by  the  Supreme  Court,  in 
construing  statutes,  is  to  adopt  the  construction  of  the 
Courts  of  the  country,  by  whose  Legislature  the  statute 
was  enacted.  This  rule  may  be  subject  to  some  modi- 
fication when  applied  to  British  statutes  adopted  in  any 
of  the  States.     By  adopting  them,  they  become  our 

1  6  Peters,  291.    But  see  5  Howard,  134. 

2  3  Howard,  464.         3  4  Jbid.  353.  ■*  2  Peters,  1. 


CONSTITUTIONAL  JURISPRUDENCE.  189 

own  as  entirely  as  if  enacted  by  the  Legislature  of  the 
State.  The  construction,  therefore,  which  British  stat- 
utes had  received  in  England,  at  the  time  of  their 
adoption,  in  this  country, —  indeed,  from  the  time  of 
its  separation  from  the  mother-country,  —  may  very 
properly  be  considered  as  accompanying  the  statutes 
themselves,  and  forming  an  integral  part  of  them.  But, 
however  subsequent  decisions  of  the  English  Courts 
may  be  respected  here, —  and,  certainly,  they  are  entitled 
to  great  respect, —  their  absolute  authority  is  not  admit- 
ted. If  those  Courts  vary  in  their  construction  of  a 
statute,  ours  do  not  hold  themselves  bound  to  fluctuate 
with  them.^ 

From  the  survey,  which  I  have  now  completed,  of 
our  Federal  Judicial  establishment,  it  will  have  been 
perceived  that  the  leading  features  of  the  system  are  to 
be  found  in  the  Act  of  1789,  so  often  referred  to,  passed 
at  the  first  session  of  the  first  Congress  under  the  pres- 
ent Constitution.  It  is  understood  to  have  been  drawn 
up  by  Mr.  Oliver  Ellsworth,  then  a  Senator  from  Con- 
necticut, and  afterwards  Chief  Justice  of  the  United 
States.  It  has  stood  the  test  of  severe  experience  since 
that  time,  with  very  little  alteration  or  improvement, — 
a  fact  that  affords  the  strongest  evidence  of  the  wisdom 
of  the  plan,  and  its  skilful  adaptation  to  the  interests 
and  convenience  of  the  country.  It  was,  evidently,  the 
result  of  much  profound  reflection,  and  great  legal 
knowledge ;  and  the  system  thus  formed  and  reduced 
to  practice,  has  been  so  successful  and  beneficial  in  its 
operation,  that  the   administration   of  justice   in   the 

1  5  Peters,  264. 


190  LECTURES   ON 

Federal  Courts,  has,  upon  the  whole,  been  constantly 
rising  in  influence  and  reputation.  In  this  review  of 
the  most  important  points  which  have  arisen  with  re- 
spect to  the  constitutional  powers  of  the  Judicial  depart- 
ment, we  have  seen  that  it  is  competent,  not  only  to 
construe  the  Constitution,  and  thus  pronounce  on  the 
constitutionality  of  the  laws  of  the  United  States,  and 
on  the  validity  of  the  Constitutions  and  laws  of  the 
several  States,  and  to  declare  either  of  the  latter  void, 
if  repugnant  to  the  Federal  Constitution,  or  to  a  law, 
or  treaty  of  the  Federal  Government, —  but  also  to 
revise  the  judgments  of  the  State  Courts  enforcing  any 
ordinance  contrary  to  the  provisions  of  the  National 
compact.  We  have  seen,  moreover,  that  the  Federal 
Courts  must  either  possess  exclusive  jurisdiction  in  all 
cases  affecting  the  Constitution,  laws,  and  treaties  of 
the  Union,  or  they  must  have  power  to  review  the  judg- 
ments rendered  on  all  such  questions  by  the  State 
tribunals ;  and,  so  far  as  the  latter  power  has  hitherto 
been  controverted,  it  has  been  sustained  by  the  Supreme 
National  Tribunal  with  great  ability  and  success,  and 
with  equal  learning,  dignity,  and  discretion. 


CONSTITUTIONAL  JURISPRUDENCE.  191 


LECTURE    VII, 

OP   THE   POWERS   VESTED   IN   THE  FEDERAL    GOVERNMENT, 
RELATIVE  TO   SECURITY   FROM   FOREIGN   DANGER. 

We  are  now  to  enter  upon  the  second  general  division 
of  our  subject,  which  relates  to  "  the  nature,  extent,  and 
limitation  of  the  powers  vested  in  the  Federal  Govern- 
ment, and  the  restraints  imposed  by  the  Constitution 
on  the  States." 

The  powers  conferred  on  the  National  Government 
may  be  reduced,  as  I  have  already  mentioned,  to  differ- 
ent classes,  as  they  relate  to  the  following  different 
objects,  viz:  — 

First.  Security  from  foreign  danger. 

Second.  Intercourse  with  foreign  nations. 

Third.  Harmony  among  the  States. 

Fourth.  Miscellaneous  objects  of  general  utility. 

Fifth.  Restrictions  on  the  powers  of  the  States  ;  and. 

Sixth.  Provisions  for  giving  efficacy  to  the  powers 
vested  in  the  Union. 

As  security  from  foreign  danger  is  one  of  the  primary 
objects  of  civil  society,  so  it  was  an  avowed  and  essen- 
tial purpose  of  the  union  of  the  States ;  and,  accordingly, 
the  powers  requisite  to  attaining  it  were  effectually  con- 
fided to  the  National  Government,  and  consist, 

Is^  Of  the  powers  of  declaring  war,  and  granting 
letters  of  marque  and  reprisal. 


192  LECTURES   ON 

2d.  Of  making  rules  concerning  captures  by  land 
and  water. 

Sd.  Of  providing  armies  and  fleets,  and  of  regulating 
and  calling  forth  the  militia  of  the  States ;  and,  as 
connected  with  these,  the  substantive  and  distinct  power 
of  levying  taxes  and  borrowing  money. 

I.  The  right  of  self-defence  is  a  part  of  the  law  of 
our  nature,  and  it  is  the  indispensable  duty  of  civil 
society  to  protect  its  members  in  the  enjoyment  of  their 
rights,  both  of  person  and  property.  This  is  a  funda- 
mental principle  of  every  social  compact ;  and  it  is  laid 
down  by  all  approved  writers  on  public  law,  that  on 
this  principle,  an  injury  done  or  threatened  to  the  per- 
fect rights  of  a  nation,  or  any  of  its  members,  and, 
susceptible  of  no  other  redress,  is  just  cause  of  war. 
But  as  the  evils  of  war  are  certain,  and  its  results 
doubtful,  both  wisdom  and  humanity  require  that  every 
possible  precaution  should  be  taken,  and  every  neces- 
sary preparation  made,  before  engaging  in  it.  It  was 
formerly  usual  to  precede  hostilities  by  a  public  decla- 
ration communicated  in  form  to  the  enemy ;  but  in 
modern  times  this  practice  has  been  discontinued  ;  and 
the  nation  proclaiming  war  now  confines  itself  to  a 
declaration  within  its  own  territory,  and  to  its  own 
people. 

The  power  of  declaring  war  is  vested  by  the  Consti- 
tution of  the  United  States  in  Congress ;  without  whose 
consent  no  State  can  engage  in  war,  unless  actually 
invaded,  or  in  such  imminent  danger  of  invasion  as  will 
not  admit  delay.  So  that  this  power  of  Congress  is 
not  only  of  its  own  nature  exclusive,  but  its  concurrent 
exercise  is  expressly  prohibited ;  nor  is  it  easy  to  con- 
ceive where  else  but  in  Congress  it  could  be  properly 


CONSTITUTIONAL  JUEISPRUDENCE.  193 

and  prudently  deposited.  Although  Congress  alone,  by- 
its  solemn  act,  passed,  like  other  laws,  according  to  the 
forms  of  the  Constitution,  can  subject  the  nation  to  the 
hazardous  events  of  war,  yet  the  interposition  of  a 
smaller  portion  of  the  Government  has  power  to  restore 
peace.  Hostilities  may  be  terminated  by  a  truce,  which 
may  be  made  by  the  President  alone,  as  Commander- 
in-chief  of  the  military  forces  of  the  Union,  and  of 
which  the  duration  may  be  indefinite ;  while  treaties,  by 
which  peace  is  completely  restored,  may  be  made,  as 
we  have  seen,  by  the  President  and  Senate,  without  the 
intervention  of  the  House  of  Representatives. 

As  delay  in  making  war  may  be  sometimes  detri- 
mental to  individuals  who  may  have  suffered  from  the 
depredations  of  foreign  powers.  Congress  is  invested 
also  with  the  power  of  issuing  letters  of  marque  and 
reprisal ;  the  latter  signifying  a  "  taking  in  return ; "  the 
former,  "  passing  the  frontier  in  order  to  such  taking."  ^ 
This  power  is,  in  all  cases,  plainly  derived  from  that  of 
making  war.  It  induces,  indeed,  only  an  incomplete 
state  of  hostilities,  but  generally  ends  in  their  formal 
denunciation.  By  the  law  of  nations,  letters  of  marque 
and  reprisal  may  be  granted  whenever  the  subjects  of 


1  This  is  the  literal  meaning  of  the  terms ;  but  the  only  practical 
distinction  seems  to  be  the  one  given  in  the  note  to  Mr.  Duponceau's 
valuable  edition  of  Bynkershoeck,  p.  183,  which  is  between  Letters  of 
Marque,  and  Letters  of  Marque  and  Reprisal.  The  latter,  he  says,  is 
"the  old  technical  expression  for  what  we  now  call  a  privateer's 
commission ;  the  former  is  applied  to  a  vessel  fitted  out  for  war  and 
merchandise,  and  armed  merely  for  defence."  To  the  honor,  and  in 
proof  of  the  progressive  civilization  of  the  age,  privateering  has  been 
generally  discouraged,  if  not  wholly  suppressed,  in  the  war  now 
raging  in  Europe ;  and  will  probably  never  be  revived. 
17 


194  LECTURES   ON 

one  State  are  oppressed  and  injured  by  those  of  another, 
and  justice  is  denied  by  the  State  to  which  the  oppres- 
sor belongs.  They  are  in  the  nature  of  a  commission 
granted  by  the  Government  to  particular  citizens,  au- 
thorizing them  to  seize  the  bodies  or  goods  of  citizens 
of  the  offending  nation,  wherever  they  may  be  found, 
until  satisfaction  be  made.  And  although  this  pro- 
cedure seems  to  be  dictated  by  Nature  herself,  yet 
the  necessity  is  obvious,  of  calling  on  the  sovereign 
power  to  determine  when  it  may  be  resorted  to ;  as, 
otherwise,  every  private  individual  might  act  as  a  judge 
in  his  own  cause,  and,  to  avenge  his  private  injury, 
involve  the  nation  to  which  he  belongs  in  war. 

II.  The  power  of  making  ^^  rules  concerning-  captures 
on  land  and  water"  which  is  superadded  to  the  consti- 
tutional power  of  declaring  war,  is  not  confined  to 
captures  made  beyond  the  territorial  limits  of  the  United 
States,  but  comprehends  rules  respecting  the  property 
of  an  enemy  found  within  those  limits.  It  is  an  ex- 
press grant  to  Congress  of  the  power  of  confiscating 
such  property,  as  an  independent  substantive  power, 
not  included  in  the  power  of  declaring  war ;  and  when 
a  war  breaks  out,  the  question  as  to  the  disposition  of 
enemy-property  in  the  country,  is  a  question  of  policy 
for  the  consideration  of  the  National  Legislature,  and 
not  proper  for  the  consideration  of  the  Judicial  power, 
which  can  only  pursue  that  course  in  regard  to  such 
property  as  Congress  may  direct.^  According  to  the 
best  writers  on  the  law  of  nations,  a  declaration  of  war 
by  the  sovereign  power  of  one  State  against  another, 
implies  that  the  whole  nation  declares  war ;  and  that 

1  8  Cranch,  109. 


CONSTITUTIONAL  JURISPRUDENCE.  195 

all  the  subjects  of  the  one  are  enemies  to  all  the  sub- 
jects of  the  other.  But  although  a  declaration  of  war 
has  this  effect  with  regard  to  individuals,  and  thus  gives 
to  them  those  mutual  and  respective  rights  under  the 
law  of  nations  which  a  state  of  war  confers,  yet  the 
mere  declaration  does  not,  by  its  single  operation,  pro- 
duce any  of  those  results  which  are  usually  effected  by 
the  ulterior  measures  of  the  Government,  consequent 
upon  the  declaration  of  war.  By  a  strict  interpretation, 
indeed,  of  the  ancient  public  law,  war  gives  to  a  nation 
full  right  to  take  the  persons  and  confiscate  the  property 
of  its  enemy,  wherever  found ;  and  the  mitigation  of 
this  rule  which  the  policy  of  modern  times  has  intro- 
duced into  practice,  although  it  may  affect  its  exercise, 
can  never  impair  the  right  itself;  and  whenever  the 
Legislature  chooses  to  bring  it  into  operation,  the  Ju- 
dicial department  must  give  it  effect. 

Until  the  Legislative  will,  however,  is  distinctly  de- 
clared, no  power  of  condemnation  can  exist  in  the 
Courts ;  and,  from  the  structure  of  our  Government, 
proceedings  to  condemn  enemy's  property  found  in  the 
country  at  the  declaration  of  war,  can  be  sustained 
only  on  the  principle  of  their  having  been  commenced 
in  execution  of  an  existing  law.  An  Act  of  Congress 
simply  declaring  war,  does  not,  by  its  own  operation, 
so  vest  such  property  in  the  Government  as  to  support 
Judicial  proceedings  for  its  seizure  and  condemnation ; 
but  vests  merely  a  right  of  which  the  assertion  depends 
on  the  future  action  of  the  Legislature.^ 

In  expounding  the  Constitution  of  the  United  States, 
a  construction  should  not  lightly  be  admitted,  which 

1  8  Cranch,  109. 


196  LECTURES   ON 

would  give  to  a  declaration  of  war  an  effect  in  this 
country,  which  it  does  not  possess  elsewhere  ;  and 
which  would  fetter  that  entire  discretion  respecting 
enemies'  property,  which  may  enable  us  to  apply  to  the 
enemy  the  rule  that  he  applies  to  us.  That  a  declara- 
tion of  war  has  only  the  effect  of  placing  the  two 
nations  in  a  state  of  hostility,  but  not  of  operating  by 
its  own  force  any  of  those  results, —  such  as  a  transfer 
of  property, — which  are  usually  produced  by  ulterior 
measures  of  Government,  is  fairly  deducible  from  the 
enumeration  of  the  power  now  in  question.  It  would 
be  restraining  the  clause  "to  make  rules  concerning 
captures  on  land  and  water,"  within  narrower  limits 
than  the  words  themselves  import,  to  say  that  its  mean- 
ing is  confined  to  captures  which  are  extra-territorial. 
It  extends  to  rules  respecting  enemies'  property  found 
within  the  territory;  and  is  an  express  grant  to  Congress 
of  the  power  in  question,  as  an  independent,  substan- 
tive power,  not  included  in  that  of  declaring  war.  A 
declaration  of  war,  therefore,  is  not  per  se  a  confiscation 
of  enemies'  property.^ 

III.  The  power  of  raising  armies  and  equipping-  fleets 
seems  to  be  involved  in  the  power  of  declaring  war ; 
and  to  have  left  it  to  be  exercised  by  the  States,  under 
the  direction  of  Congress,  as  was  the  case  under  the 
Confederation,  would  have  inverted  a  primary  principle 
of  the  new  Constitution,  and,  in  practice,  transferred 
the  care  of  the  common  defence  from  the  Federal  head 
to  the  individual  members  of  the  Union.  The  various 
inconveniences  which  would  attend  the  system  of  a 
separate  organization  of  the  national   force   must  be 

i  8  Oranch,  109. 


CONSTITUTIONAL  JURISPRUDENCE.  197 

obvious.  They  had  been  experienced  during  the  war 
of  our  Revolution,  and  had  proved  that  such  a  system 
was  oppressive  to  some  of  the  States,  and  dangerous  to 
all.  Under  our  present  Constitution,  sufficient  reasons 
have  appeared  to  induce  an  apprehension  that  the  State 
Governments  are  naturally  prone  to  rivalship  with  the 
Government  of  the  Union ;  and  if,  in  addition  to  this, 
their  ambition  were  stimulated  by  the  separate  and 
independent  possession  of  military  forces,  too  strong  a 
temptation  and  too  great  a  facility  would  be  given 
them  to  subvert  the  constitutional  authority  of  the 
Union.  The  liberties  of  the  people  would,  moreover, 
be  less  safe  under  such  an  arrangement  than  under  that 
which  leaves  the  national  forces  in  the  hands  of  the 
National  Government.  So  far  as  an  army  may  be 
likely,  in  this  country,  to  become  an  instrument  of 
ambition  or  power,  it  had  better  be  at  the  disposal  of 
that  power  of  which  the  people  are  most  apt  to  be 
jealous ;  for  it  is  a  truth  which  the  experience  of  ages 
has  attested,  that  the  people  are  commonly  most  in 
danger  when  the  means  of  invading  their  rights  are 
at  the  command  of  those  of  whom  they  are  the  least 
suspicious. 

Standing  armies,  in  time  of  peace,  have,  indeed,  been 
objected  to  as  dangerous  to  our  free  institutions;  but 
there  can  scarcely  be  ground  for  such  apprehension, 
from  the  nature  of  the  Federal  Government ;  while  the 
impolicy  of  restraints  on  its  discretion  with  respect  to 
raising  forces  by  land  or  sea,  is  manifest,  from  the 
consideration  that  the  efficiency  of  the  power  depends 
on  its  being  indefinite,  and  upon  its  extending  to  the 
maintaining  them  in  peace  as  well  as  in  war  ;  for  with 
no  show  of  propriety  could  the  force  requisite  for  de- 
17* 


198  LECTURES   ON 

fence  be  limited  by  those  who  have  no  power  to  limit 
the  strength  and  power  of  offence  possessed  by  an 
enemy ;  nor  unless  our  Government  could  set  bounds 
to  the  ambition,  injustice,  or  exertions  of  other  nations, 
could  restraints  be  safely  imposed  upon  its  discretion, 
or  limits  prescribed  to  it  for  self-preservation.  Besides, 
a  readiness  for  war,  in  time  of  peace,  is  not  only  neces- 
sary for  self-defence,  but  affords  the  most  certain  means 
of  preventing  aggression,  by  exhibiting  such  resources 
and  preparations  for  repelling  it  as  may  discourage  or 
deter  an  enemy  from  attempts  which,  from  that  very 
circumstance,  would  probably  prove  unavailing.  A 
prohibition,  therefore,  against  raising  and  maintaining 
armies  and  fleets  in  time  of  peace,  would  not  only 
exhibit  the  extraordinary  spectacle  of  a  nation  incapaci- 
tated by  its  Constitution  from  preparing  for  defence 
before  it  was  actually  invaded,  but  would  be  altogether 
inconsistent  with  the  public  safety,  and  the  exigencies 
of  self-protection,  unless  by  its  Constitution  it  could 
in  like  manner  prohibit  the  preparations  and  limit  the 
establishments  of  every  hostile  power.  The  means  of 
security  can  only  be  regulated  by  the  means,  probabili- 
ties, and  dangers  of  attack ;  and  it  would  be  worse  than 
useless  to  oppose  constitutional  barriers  to  the  impulse 
of  self-preservation,  because  it  would  embody  in  the 
Constitution  the  temptation,  if  not  the  necessity  of 
resorting  to  usurpations  of  extraordinary  power,  every 
precedent  of  which  would  be  the  excuse  for  unnecessary 
and  multiplied  repetitions  of  measures  far  more  danger- 
ous to  public  liberty  than  a  standing  army,  in  a  country 
with  a  population  and  under  a  Government  like  ours. 

The  jealousy  which  would  abolish  our  military  estab- 
lishments in  time  of  peace,  may  be  traced  to   those 


CONSTITUTIONAL  JURISPRUDENCE.  199 

habits  of  thinking  which  the  inhabitants  of  the  United 
States  derived  from  the  people  from  which  they  sprung, 
and  upon  the  prevailing  sentiments  on  the  subject  at 
the  period  of  our  Revolution.  As  incident  to  the  un- 
defined and  unrestricted  power  of  making  war,  it  was 
the  acknowledged  prerogative  of  the  British  Crown  to 
maintain,  by  its  own  authority,  regular  troops  in  time 
of  peace.  The  abuse  of  this  prerogative,  among  others, 
led  to  the  public  execution  of  one  king,  and  the  expul- 
sion of  another;  and  to  guard  for  the  future  against 
the  exercise  of  power  so  dangerous,  the  Bill  of  Rights^ 
framed  by  the  Convention-Parliament,  and  acceded  to 
by  King  William,  at  the  revolution  of  1688,  declared 
that  "  raising  or  keeping  a  standing  army  in  time  of 
peace,  unless  with  the  consent  of  Parliament,  was 
against  law."  ^  The  events  which  led  to  our  own  Revo- 
lution quickened  the  public  sensibility  on  every  point 
connected  with  the  security  of  popular  rights  ;  and  the 
principles  which  taught  our  fathers  to  be  jealous  of  the 
power  of  an  hereditary  monarch,  were  afterward  ex- 
tended to  their  own  representatives.  In  the  Constitu- 
tions of  Pennsylvania  and  North  Carolina,  prohibitions 
of  military  establishments  in  time  of  peace  were  intro- 
duced ;  and  in  those  of  New  Hampshire,  Massachusetts, 
Delaware,  and  Maryland,  a  declaration  was  inserted 
similar  to  that  of  the  English  Bill  of  Rights,  although 
that  declaration  was  inapplicable  to  any  of  the  State 
Governments  ;  for  the  power  of  raising  and  keeping  on 
foot  standing  armies  could  by  no  possible  construction 
be  deemed,  at  that  time,  to  reside  anywhere  else  than 
in  the  Legislatures  themselves.     It  was  therefore  super- 

1  1  WiUiam  and  Mary,  Stat.  1.  Ch.  1. 


200  LECTURES   ON 

fluous,  to  say  the  least  of  it,  to  declare  that  a  measure 
should  not  be  adopted  without  the  consent  of  that  body 
which  alone  had  the  power  of  adopting  it. 

Those  State  Constitutions  which  have  been  most 
approved  are  silent  on  the  subject ;  and  the  only  direct 
restriction  on  Congress  in  regard  to  the  exercise  of  its 
military  powers,  is  contained  in  an  amendment  to  the 
Federal  Constitution,  which  declares  that  "no  soldier 
shall,  in  time  of  peace,  be  quartered  in  any  house  with- 
out the  consent  of  the  owner ;  nor  in  time  of  war  but 
in  a  manner  to  be  prescribed  by  law."  ^  Even  in  those 
State  Constitutions  which  seem  to  have  meditated 
a  total  interdiction  of  military  establishments  during 
peace,  the  expressions  used  are  monitory  rather  than 
prohibitory ;  and  the  ambiguity  of  their  terms  appears 
to  have  resulted  from  a  conflict  between  the  desire  of 
excluding  such  establishments,  and  the  conviction  that 
the  measure  would  be  unwise  and  hazardous.  The 
union  of  the  States  under  the  National  Constitution 
removes  every  pretext  for  a  military  establishment  in 
any  of  the  States  which  could  be  dangerous  ;  while  our 
distance  from  the  powerful  nations  of  Europe  affords 
sufficient  security  that  the  Federal  Government  will 
never  be  able  to  persuade  or  delude  the  people  into  the 
support  of  large  and  expensive  peace  establishments. 
The  danger,  indeed,  is  the  other  way  ;  and  it  is  rather 
to  be  feared  that  mistaken  notions  of  economy,  if  not 
of  jealousy,  will  always  tend  to  render  our  military 
force  not  merely  too  weak  for  the  protection,  but  reduce 
it  too  low  even  for  the  preservation  of  our  forts  and 
arsenals.     The  Union  itself,  however,  is  our  best  protec- 

1  Amendment  to  Const.  U.  S.,  Art.  iii. 


CONSTITUTIONAL  JUKISPRUDENCE.  201 

tion  and  defence,  and  our  principal .  security  against 
danger  from  abroad,  internal  commotion,  or  domestic 
usurpation.  It  may,  moreover,  be  numbered  among 
the  blessings  vouchsafed  to  our  country,  that  the  Union 
itself  is  the  great  source  of  our  maritime  strength ; 
while  the  palpable  necessity  of  a  navy,  and  its  proved 
efficiency  as  an  arm  of  national  defence,  have  silenced 
the  jealousy  or  the  scruples  which  at  one  period  pre- 
vented due  attention  to  fostering  it  in  time  of  peace. 
It  has  since  fought  its  way  to  the  patronage  of  the 
Government,  and  it  always  enjoyed  the  favor  of  the 
people. 

Although  no  State  can  establish  a  permanent  mili- 
tary government,  yet  it  may  use  its  military  power  to 
put  down  an  armed  insurrection  too  strong  to  be 
controlled  by  the  civU  authority ;  and  the  State  must 
determine  for  itself,  what  degree  of  force  the  crisis 
demands.  After  it  has  declared  martial  law.,  a  military 
officer  may  lawfully  arrest  any  person  whom  he  has 
reasonable  grounds  to  believe  was  engaged  in  the  in- 
surrection ;  or  he  may  order  a  house  to  be  forcibly 
entered  for  the  purpose.  But  no  more  force  should  be 
used  than  is  necessary  for  the  accomplishment  of  the 
object ;  and  if  the  power  is  exercised  for  the  sake  of 
oppression,  or  any  injury  be  done  wilfully  to  person  or 
property,  the  party  by  whom,  or  by  whose  order  it  is 
committed,  would  undoubtedly  be  answerable.^ 

IV.  The  power  of  regulating  the  militia,  and  com- 
manding its  services  in  cases  of  insurrection  or  inva- 
sion, are  incident  to  the  duties  of  superintending  the 
common  defence,  and  of  watching  over  the  internal 
peace  of  the  Union. 

1  6  Howard,  1. 


202  LECTURES   ON 

Uniformity  in  the  organization  and  discipline  of  the 
militia  must  evidently  be  attended  with  the  most  bene- 
ficial results  whenever  they  are  called  into  service,  as  it 
enables  them  to  discharge  their  duties  with  mutual  in- 
telligence and  concert.  This  desirable  uniformity  could 
only  be  accomplished  by  confiding  the  regulation  of  the 
militia  of  the  several  States  to  the  General  Govern- 
ment. It  was  therefore  essential  that  Congress  should 
have  authority,  not  only  "  to  provide  for  calling  forth 
the  militia  to  execute  the  laws  of  the  Union,  to  sup- 
press insurrections,  and  repel  invasions,"  but  also  "  to 
provide  for  organizing,  arming,  and  disciplining  them  ; 
and  for  governing  such  parts  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States." ' 

The  President  is  constituted,  as  we  have  seen,  Com- 
mander-in-chief of  the  militia  when  called  into  the 
actual  service  of  the  Union ;  and  he  is  authorized  by 
law,  in  cases  of  invasion,  or  imminent  danger  thereof, 
to  call  forth  such  numbers  of  the  militia  most  con- 
venient to  the  scene  of  action,  as  he  may  judge  neces- 
sary. The  militia  so  called  forth  are  subject  to  the 
rules  of  war ;  and  the  law  imposes  a  fine  on  every 
delinquent  who  disobeys  the  summons,  to  be  adjudged 
by  a  court-martial  composed  of  militia  officers  only, 
and  held  and  conducted  according  to  the  articles  of 
war.  During  the  war  of  1812,  the  authority  of  the 
President  over  the  militia  of  the  several  States  became 
the  subject  of  doubt  and  difficulty  between  the  Federal 
Government  and  some  of  the  States.  It  was  the 
opinion  of  the  Connecticut  Government,  not  only  that 
the  militia  could  not  be  called  out  at  the  requisition  of 
the  General  Government  except  in  a  case  founded  upon 

1  Const.  U.  S.,  Art.  I.  Sect.  vm. 


CONSTITUTIONAL  JURISPRUDENCE.        203 

the  existence  of  one  of  the  specified  exigencies,  to  be 
judged  of  by  the  State  Government ;  but  that,  when 
called  out,  they  could  not  be  taken  from  the  command 
of  the  officers  duly  appointed  by  the  State,  and  placed 
under  the  immediate  command  of  an  officer  of  the 
United  States  army ;  nor  could  the  United  States,  in 
the  opinion  of  that  Government,  lawfully  detach  a  por- 
tion of  the  privates  from  the  body  of  their  company. 
Similar  difficulties  arose  between  the  Federal  authori- 
ties and  the  Government  of  Massachusetts ;  the  Gov- 
ernor of  which  State,  as  well  as  the  Governor  of 
Connecticut,  refused  to  furnish  detachments  of  militia 
for  the  defence  of  the  maritime  frontier,  on  an  exposi- 
tion of  the  Federal  Constitution,  which  they,  no  doubt, 
believed  to  be  sound  and  just.  In  Connecticut,  the 
claim  of  the  Governor  to  judge  whether  the  exigency 
existed  to  authorize  a  call  of  the  militia  of  the  State,  or 
any  portion  of  it,  into  the  service  of  the  Union,  and  the 
claim  on  the  part  of  the  State  to  retain  the  command 
of  them,  when  duly  ordered  out,  against  any  subordi- 
nate officer  of  the  United  States  army,  were  submitted 
to  the  consideration  of  the  State  Legislature,  and  re- 
ceived the  strong  and  decided  sanction  of  that  body. 
In  Massachusetts,  the  Governor  consulted  the  Judges 
of  the  Supreme  Court  of  that  State  as  to  the  true 
construction  of  the  Constitution  on  both  those  points. 
The  Judges  were  of  opinion  that  it  belonged  to  the 
Governors  of  the  several  States  to  determine  when  any 
of  the  exigencies  contemplated  by  the  Federal  Consti- 
tution existed  to  require  them  to  transfer  the  militia, 
or  any  part  of  it,  to  the  service  of  the  Union,  and 
command  of  the  President.  It  was  supposed  that  the 
Constitution  did  not  give  the  power  of  judging  as  to 


204  LECTURES   ON 

the  existence  of  the  exigency,  by  any  express  terms,  to 
the  President  or  to  Congress ;  and  that,  inasmuch  as  it 
was  not  prohibited  to  the  States,  the  right  of  deciding 
upon  that  point  was,  of  course,  reserved  to  them.  A 
different  construction  would,  it  was  alleged,  place  all 
the  militia,  in  effect,  at  the  will  of  Congress,  and  pro- 
duce a  military  consolidation  of  the  States.  The  Act 
of  Congress  vested  in  the  President  the  power  of  call- 
ing forth  the  militia  when  any  one  of  the  exigencies 
existed ;  and  if  to  that  were  superadded  the  power  of 
determining  the  casus  foederis,  the  militia  would,  in 
fact,  be  under  the  President's  control. 

As  to  the  question  how  the  militia  were  to  be  com- 
manded when  duly  called  out,  the  Massachusetts  Judges 
were  of  opinion  that  the  President  alone,  of  all  the 
officers  acting  under  the  United  States,  was  authorized 
to  command  them ;  and  that  he  must  command  them 
as  they  were  organized  under  officers  appointed  by  the 
State,  as  they  could  not  be  transferred  to  the  command 
of  any  officer,  not  of  the  militia,  except  the  President. 
But  these  learned  Judges,  acting  as  councillors,  did  not 
undertake  to  determine  how  the  militia  were  to  be 
commanded  in  case  of  the  absence  of  the  President; 
or  of  a  junction  of  militia  with  regular  troops  ;  or 
whether  they  were  to  act  under  their  separate  officers, 
but  in  concert,  as  foreign  allies  ;  or  whether  the  officer 
present  of  the  highest  rank,  either  of  the  militia  or  of 
the  regular  army,  was  authorized  to  command  the 
united  forces ;  these  were  found,  it  seems,  to  be  ques- 
tions too  difficult  and  perplexing  for  extra-judicial 
decision. 

Mr.  Madison,  one  of  the  most  prominent  members 
of  the  Convention  which  formed  the  Constitution,  and 


CONSTITUTIONAL  JURISPRUDENCE.  205 

one  of  its  ablest  defenders,  was,  at  the  time  of  these 
disputes.  President  of  the  United  States,  and  as  such 
declared  that  these  constructions  of  the  constitutional 
powers  of  the  General  Government  over  the  militia 
were  "  novel  and  unfortunate."  In  a  message  to  Con- 
gress, to  which  they  gave  occasion,  he  observed  that, 
"if  the  authority  of  the  United  States  to  call  into 
service,  and  to  command  the  militia,  could  thus  be 
prostrated,  we  were  not  one  people  for  the  purpose 
most  of  all  requiring  that  we  should  be  united,"  Since 
that  period,  many  and  deeply  interesting  questions  aris- 
ing on  the  powers  of  the  Union  have  been  investigated 
and  decided  in  the  Federal  Courts ;  and  the  progress 
of  public  opinion,  as  well  as  the  tenor  of  those  de- 
cisions, have  been  favorable  to  a  much  more  liberal  and 
enlarged  construction  of  the  Constitution  than  that 
which  was  adopted  by  the  States  in  question  ;  so  that 
the  doctrines  of  the  General  Government,  as  now  un- 
derstood, fully  support  the  claim  of  Mr.  Madison,  as 
President  of  the  United  States,  to  judge,  exclusively  of 
State  authority,  of  the  existence  of  the  exigency  upon 
which  the  militia  may  be  called  into  the  service  of  the 
Union.  The  Acts  of  Congress  already  referred  to,  as 
well  as  the  Act  for  establishing  a  uniform  militia  through- 
out the  Union,  were  considered  by  the  Supreme  Court 
of  the  United  States,  in  the  first  case '  that  came  before 
them  on  the  subject,  as  covering  the  whole  ground  of 
Federal  legislation  in  regard  to  it.  By  the  Act  of 
Congress,  the  manner  in  which  the  militia  are  to  be 
organized,  armed,  disciplined,  and  governed,  is  fully 
prescribed ;   provision  is  made  for  drafting,  detaching, 

1  5  Wheat.  1. 
18 


806  LECTURES   ON 

and  calling  forth  the  State  quotas  when  required  by 
the  President ;  his  orders  are  to  be  given  to  the  Chief 
Magistrate  of  the  State,  or  to  any  inferior  militia  officer 
he  may  think  proper ;  neglect  or  refusal  to  obey  his 
orders  is  declared  to  be  a  public  offence,  and  subjects 
the  offender  to  trial  and  punishment  by  a  court-martial; 
and  the  mode  of  proceeding  is  perspicuously  detailed. 
The  question  before  the  Court  was  whether  it  was 
competent  for  a  court-martial,  deriving  its  jurisdiction 
qnder  State  authority,  to  try  and  punish  militiamen 
drafted,  detached,  and  called  forth  by  the  President 
into  the  service  of  the  United  States,  and  who  had 
refused  and  neglected  to  obey  the  call.  The  court 
decided  that  the  militia,  when  called  into  the  service 
of  the  United  States,  were  not  to  be  considered  as 
being  in  that  service  until  they  were  mustered  at  the 
place  of  rendezvous  ;  and  that,  until  then,  the  State 
retained  a  right  concurrent  with  the  United  States  to 
punish  their  delinquencies.  But  after  the  militia  had 
thus  actually  entered  into  the  service  of  the  Union,  their 
character  changed  from  State  to  National  militia ;  and 
the  authority  of  the  General  Government  over  such 
detachments  became  exclusive. 

In  a  subsequent  case,^  which  came  up  on  a  writ  of 
eiTor  on  a  judgment  of  the  highest  court  in  the  State 
of  New  York,  where  the  decision  had  been  against  this 
power  of  the  President  over  the  militia,  his  claim  was 
unanimously  sustained  by  the  Supreme  Court.  The 
power  confided  to  the  President  was,  indeed,  considered 
of  a  very  high  and  delicate  nature,  but  one  which  could 
not  be  executed  without   corresponding  responsibility. 

1  12  Wheat.  19. 


CONSTITUTIONAL  JURISPRUDENCE.  207 

It  is,  nevertheless,  limited  in  its  terms,  and  confined  to 
cases  of  actual  invasion  or  imminent  danger  ;  and  upon 
the  question  whether  the  President  was  the  sole  and 
exclusive  judge  of  the  existence  of  the  exigency,  or 
whether  it  was  one  which  every  officer  to  whom  his 
order  was  addressed  might  decide  for  himself,  the  court 
was  of  opinion  that  the  authority  to  decide  belonged 
exclusively  to  the  President,  and  that  his  decision  was 
conclusive  upon  all  other  persons.  This  construction 
was  hel^  necessarily  to  result  from  the  nature  of  the 
power  given  by  the  Constitution,  and  from  the  manifest 
object  contemplated  by  the  Act  of  Congress.  The 
power  itself  is  to  be  exercised  on  sudden  emergencies, 
and  under  circumstances  which  may  vitally  affect  the 
existence  of  the  Union,  and  a  prompt  and  unhesitating 
obedience  is  indispensable  to  the  attainment  of  the 
object.  The  service  is  a  military  service,  and  the  com- 
mand of  a  military  nature ;  and  in  such  cases,  every 
delay  and  obstacle  to  an  efficient  and  immediate  com- 
pliance, necessarily  tends  to  put  in  jeopardy  the  public 
interests.  While  subordinate  officers  or  soldiers  are 
pausing  to  consider  whether  they  ought  to  obey,  or 
are  scrupulously  weighing  the  evidence  of  the  facts  on 
which  the  Commander-in-chief  exercises  the  right  to 
demand  their  services,  the  hostile  enterprise  may  be 
accomplished  without  the  means  of  resistance.  If  the 
power  of  regulating  the  militia,  and  of  commanding 
its  services  in  times  of  insurrection  and  invasion,  be,  as 
has  been  alleged,  natural  incidents  to  the  duty  of  super- 
intending the  common  defence,  and  watching  over  the 
internal  peace  of  the  Union,  then  must  this  power  be 
so  construed,  with  respect  to  its  exercise,  as  not  to  de- 
feat the  important  ends  in  view.     If  the  Governor  of  a 


208  LECTURES   ON 

State,  or  other  superior  officer,  has  a  right  to  contest 
the  orders  of  the  President,  upon  his  own  doubts  as  to 
the  existence  of  the  exigency,  it  must  be  equally  the 
right  of  every  inferior  officer,  and  of  every  private  sen- 
tinel ;  and  every  act  of  any  person  in  furtherance  of 
such  orders  would  render  him  liable  in  a  civil  suit,  in 
which  his  defence  must  finally  rest  upon  his  ability  to 
estabfish,  by  competent  proof,  the  facts  upon  which  the 
exigency  was  said  to  have  arisen.  Such  a  course  would 
obviously  be  subversive  of  all  discipline,  and  expose  the 
best-intentioned  officers  to  the  chances  of  a  ruinous 
litigation ;  and,  in  many  instances,  the  evidence  on 
which  the  President  may  have  decided  might  not  con- 
stitute technical  proof,  or  its  disclosure  might  reveal 
important  secrets  of  state,  which  the  public  interests, 
and  even  safety,  might  require  to  remain  concealed. 

This  power,  therefore,  "to  provide  for  calling  forth 
the  militia  to  execute  the  laws,  suppress  insurrections, 
and  repel  invasions,"  confided  to  Congress  by  the  Con- 
stitution, is  carried  into  effect  by  the  law  which  provides 
thsit,  when  any  such  exigency  exists,  the  militia  of  the 
States  may  be  "  called  forth  "  by  the  Chief  Magistrate 
of  the  Union,  who,  by  the  Constitution,  is  Commander- 
in-chief  of  the  militia  when  in  the  actual  service  of  the 
United  States,  whose  duty  it  is  "  to  take  care  that  the 
laws  be  faithfully  executed,"  and  whose  responsibility 
for  an  honest  discharge  of  his  official  obligations  is 
secured  by  the  highest  sanctions.  He  is  necessarily  to 
judge,  in  the  first  instance,  and  is  bound  to  act  accord- 
ing to  his  belief  of  the  facts.  If  he  decide  to  call  forth 
the  militia,  and  his  requisitions,  which  are  orders,  for 
this  purpose,  are  in  conformity  with  the  provisions  of 
the  law,  it  would  seem  to  follow,  as  a  necessary  conse- 


CONSTITUTIONAL  JURISPRUDENCE.  209 

quence,  that  every  subordinate  officer  is  bound  to  obey 
them.  Whenever  the  law  gives  to  the  President  a  dis- 
cretionary power,  to  be  exercised  by  him  upon  his  own 
opinion  of  certain  facts,  it  is  a  sound  rule  of  construc- 
tion, that  the  statute  constitutes  him  the  sole  and  ex- 
clusive judge  of  the  existence  of  those  facts,  and  it  is 
not  a  valid  objection  that  such  power  may  be  abused  ; 
for  there  is  no  power  that  is  not  susceptible  of  abuse. 
The  remedy  for  this,  and  all  other  official  misconduct, 
is  to  be  found  in  the  Constitution  itself.  In  a  free  gov- 
ernment the  danger  must  be  remote,  since,  in  addition 
to  the  high  qualifications  which  the  Chief  Magistrate 
must  be  presumed  to  possess,  the  frequency  of  elections, 
and  the  watchfulness  of  the  National  Representatives, 
carry  with  them  all  the  checks  that  can  be  useful  to 
guard  against  usurpation  or  tyranny. 

It  has,  however,  been  objected,  that  even  admitting 
the  judgment  of  the  President  to  be  conclusive  as  to 
the  existence  of  the  exigency,  still,  it  is  necessary  that 
it  should  appear  that  the  particular  exigency  in  fact 
existed ;  and  the  same  principles  were  alleged  to  be 
applicable  to  the  delegation  and  exercise  of  this  power 
intrusted  to  the  President  for  great  political  purposes, 
as  are  applied  to  the  humblest  agent  of  the  Govern- 
ment, acting  under  the  most  narrow  and  special  au- 
thority. But  when  the  President  exercises  an  authority 
confided  to  him  by  law,  the  presumption  is,  that  it  is 
exercised  in  pursuance  of  the  law.  Every  public  offi- 
cer, indeed,  is  presumed  to  act  in  obedience  to  his  duty, 
until  the  contrary  be  shown ;  and  d  fortiori,  that  pre- 
sumption ought  to  be  favorably  applied  to  the  Chief 
Magistrate.  Nor  can  the  non-existence  of  the  exigency 
be  averred  and  shown  by  the  delinquent  party  ;  for  if  it 
18* 


210  LECTURES    ON 

could  be  averred,  it  would  be  traversable,  and,  of  course, 
might  be  passed  upon  by  a  jury ;  and  thus  the  legality 
of  the  order  would  depend,  not  on  the  judgment  of  the 
President,  but  upon  the  finding  of  those  facts  upon  the 
proof  submitted  to  the  jury.  It  must,  therefore,  be 
sufficient  if  the  President  determine  the  exigency  to 
exist,  and  all  other  persons  must  be  bound  by  his 
decision. 

V.  The  power  of  raising  money  by  taxation  and  loans 
being  the  main  sinew  of  that  which  is  to  be  exerted  in 
the  national  defence,  is  therefore  properly  arranged  in 
the  same  class,  especially  as  this  object  is  specified  in 
the  Constitution  as  one  of  the  purposes  of  vesting  it 
in  Congress.  The  support  of  the  national  forces,  the 
expense  of  raising  troops,  of  building  and  equipping 
fleets,  and  all  the  other  expenditures  in  anywise  con- 
nected with  military  and  naval  plans  and  operations, 
are  not,  however,  the  only  objects  to  which  the  juris- 
diction of  Congress,  with  respect  to  revenue,  extends. 
The  terms  by  which  the  power  is  conferred,  embrace  a 
provision  for  the  support  of  the  civil  establishments  of 
the  United  States,  the  payment  of  the  national  debt, 
and,  in  general,  for  all  those  objects  for  which  "the 
general  welfare"  requires  the  disbursement  of  money 
from  the  national  treasury.  The  necessity  of  vesting 
this  power  in  the  Federal  Government  seems  to  be  too 
obvious  to  require  elucidation.  Money  is,  indeed,  the 
vital  principle  of  the  body  politic.  It  is  that  which 
sustains  its  life  and  motion,  and  enables  it  to  perform 
its  most  essential  functions.  No  Government,  therefore, 
can  be  supported  without  possessing  the  means  within 
itself,  independently  of  the  concurrence  of  others,  of 
procuring  a  regular  and  adequate  supply  of  revenue. 


CONSTITUTIONAL  JUKISPRUDENCE.  211 

SO  far  as  the  resources  at  its  command  will  permit. 
There  must,  of  necessity,  then,  be  interwoven  in  the 
texture  of  every  Government  a  power  of  taxation  in 
some  shape  or  other.  In  the  Government  of  the  United 
States,  it  is  coextensive  with  the  purposes  of  the  Con- 
stitution. Congress  is  accordingly  invested  with  power 
"  to  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
to  pay  the  debts,  and  provide  for  the  common  defence 
and  general  welfare  ; ''  ^  and  it  has  also  a  distinct  power 
"  to  borrow  money  on  the  credit  of  the  United  States."  ^ 
It  was  originally  urged  as  an  objection  to  the  Consti- 
tution, and  it  is  still  occasionally  contended,  that  the 
latter  branch  of  the  former  of  these  clauses  amounts, 
in  terms,  to  an  authority  to  exercise  every  power  which 
may  be  alleged  to  be  necessary  for  the  "  general  wel- 
fare." But  this  construction  was  promptly  refuted  by 
the  authors  of  "  The  Federalist  : "  "  Had  no  other 
enumeration  or  definition  of  the  powers  of  Congress," 
say  they,  "  been  found  in  the  Constitution,  there  might 
have  been  some  color  for  this  interpretation,  though  it 
would  then  have  been  difficult  to  have  found  a  reason 
for  so  awkward  a  form  of  describing  an  authority  to 
legislate  in  all  possible  cases."  It  is  evident  that  the 
expressions  in  question  must  be  taken  in  connection 
with  the  preceding  branch  of  the  clause,  and  were  in- 
tended merely  as  a  specification  of  the  objects  for 
which  taxes  are  to  be  laid,  and  not  to  convey  a  distinct 
and  independent  power  to  provide  for  "the  general 
welfare."  ^ 

1  Const.  U.  S.,  Art.  I.  Sect.  viii.  1. 

2  Ibid. 

3  "  The  Federalist,"  No.  41,  by  Mr.  Madison. 


212  LECTURES  ON 

The  power  of  taxation  is,  moreover,  limited,  by  re- 
quiring that  "  capitation  and  other  direct  taxes  shall  be 
apportioned  among  the  several  States  according  to  their 
respective  numbers,  as  ascertained  by  the  census,  and 
determined  by  the  rule  for  the  apportionment  of  Repre- 
sentatives in  Congress."  It  is  qualified,  also,  by  a  pro- 
vision that  "  all  duties,  imposts,  and  excises  shall  be 
equal  throughout  the  United  States  ; "  and  it  is  further 
restricted  by  a  prohibition  upon  Congress  to  "  lay  any 
tax  or  duties  on  articles  exported  from  the  United 
States."  The  Constitution  does  not  define  or  select 
subjects  for  exclusive  taxation  by  the  Federal  Govern- 
ment ;  although,  in  some  instances,  an  interference 
must  have  been  foreseen  from  the  exercise  of  a  concur- 
rent povp^er  with  the  States.  But  it  was  thought  better 
that  a  particular  State  should  sustain  this  inconvenience, 
than  that  the  National  necessities  should  fail  of  supply; 
and  it  was  manifestly  intended  that  Congress  should 
possess  full  power,  subject  to  the  restrictions  and  ex- 
ceptions I  have  mentioned,  over  every  species  of  tax- 
able property.*  But  the  adoption  of  the  Constitution 
of  the  United  States  did  not  operate  as  a  repeal  of  the 


1  Where  a  company  incorporated  by  the  State  of  New  York,  of 
which  all  the  stockholders  were  residents,  were  owners  of  vessels  em- 
ployed in  the  transportation  of  passengers  and  freight  between  the 
port  of  New  York  and  that  of  San  Francisco,  in  California,  and 
between  the  latter  and  different  parts  of  the  Territory  of  Oregon, 
all  of  which  vessels  were  ocean  steamships,  and  duly  registered  in 
New  York,  and  remained  in  California  no  longer  than  was  necessary 
to  land  their  passengers  and  freight,  and  prepare  for  the  next  voyage, 
it  was  held  by  the  Supreme  Court  of  the  United  States,  that  these 
vessels  are  not  liable  to  assessment  and  taxation,  under  the  laws  of 
California,  and  authorities  of  San  Francisco.     1 7  Howard,  596. 


CONSTITUTIONAL  JURISPRUDENCE.  213 

revenue  laws  of  a  State,  before  Congress  passed  an  Act 
for  the  collection  of  duties.^ 

The  term  "  taxes "  is  general,  and  was  made  use  of 
in  the  Constitution  to  confer  a  plenary  authority  in  all 
cases  of  taxation  to  which  the  powers  vested  in  the 
Union  extend.  The  most  familiar  general  division  of 
taxes  is  into  direct  and  indirect ;  and  although  the 
Constitution  designates  only  the  former  species,  it  nec- 
essarily implies  the  existence  of  the  latter.  The  general 
term,  then,  includes, 

l5^.  Direct  taxes,  which  are,  properly,  capitation  taxes, 
and  taxes  upon  land ;  although  a  direct  tax  might  be 
laid  on  other  subjects,  such  as  generally  pervade  aU 
parts  of  the  Union. 

2d.  Duties,  imposts,  and  excises  ;  and, 

3c?.  All  other  taxes  of  an  indirect  operation. 

A  direct  tax  operates  and  takes  effect  independently 
of  consumption  or  expenditure ;  while  indirect  taxes 
affect  expense  or  consumption ;  and  the  revenue  arising 
from  them  is  dependent  thereupon.  This  distinction 
between  the  different  species  of  taxes  is  of  practical 
importance,  arising  from  the  different  modes  in  which 
they  are  levied  ;  direct  taxes  being  required  to  be  "  ap- 
portioned among  the  several  States  according  to  the 
respective  numbers  of  their  inhabitants  ;"  while  indirect 
taxes,  not  admitting  of  such  apportionment,  are  directed 
to  be  "  uniform  throughout  the  United  States."  2 

Whether  direct  or  indirect  taxation  were  most  con- 
sistent with  the  interests  of  the  country,  and  the  genius 
of  its  government,  was  a  point  much  discussed  when 

1  Har.  §•  McHen.  480. 

2  Const.  U.  S.,  Art.  I.  Sect.  ix. ;  Ihid.  Art.  I.  Sect.  ix.  4. 


214  LECTURES  ON 

the  Federal  Constitution  was  under  the  consideration 
of  the  State  Conventions ;  and  even  among  those  who 
admitted  the  necessity  of  surrendering  to  the  National 
Government  sources  of  revenue  sufficient  to  discharge 
its  debts,  and  adequate  to  its  support,  there  were  some 
who  were  jealous  of  the  powers  conferred  on  it  for 
those  purposes,  and  wished  to  reserve  all  objects  of 
internal  taxation  to  the  States,  yielding  to  the  United 
States  the  power  merely  of  imposing  duties  on  imported 
articles.  But  this  discrimination,  it  was  urged,  would 
violate  that  fundamental  maxim  of  good  sense  and 
sound  policy,  which  holds  that  every  power  should  be 
proportionate  to  its  object ;  and  that  the  General  Gov- 
ernment would  still  be  left  in  such  dependence  on  the 
several  States  as  would  be  inconsistent  with  its  proper 
vigor  and  efficiency.  Commercial  imports  alone  were 
shown  to  be  unequal  to  the  existing  necessities  and 
future  exigencies  of  the  Union  ;  and  as  the  latter  did 
not  admit  of  calculation  or  limitation,  it  was  evident 
that  the  power  of  providing  for  them  ought  also  to  be 
unconfined,  especially  as,  in  the  usual  course  of  public 
affairs,  the  necessities  of  a  nation,  in  every  stage  of  its 
progress,  are  generally  found  to  be  at  least  equal  to  its 
resources. 

Whether  the  present  financial  condition  of  this  coun- 
try may  not  form  an  exception  in  its  favor,  it  would, 
perhaps,  be  premature  to  decide,  notwithstanding  the 
favorable  indications  of  later  years ;  and  as  the  power 
in  question  was,  at  all  events,  vested  in  the  Federal 
Government,  the  only  practical  importance  of  the  dis- 
tinction between  direct  and  indirect  taxation,  consists 
in  the  different  modes  in  which  they  are  respectively 
to  be  levied.     Direct  taxes  are  required,  as  we   have 


CONSTITUTIONAL  JUEISPEUDENCE.  215 

seen,  to  be  apportioned  among  the  States  according  to 
their  respective  numbers,  while  indirect  taxes,  not  admit- 
ting of  this  apportionment,  are  to  be  uniform  through- 
out the  United  States.  Thus,  if  Congress  should  think 
proper  to  raise  a  sum  of  money  by  direct  taxation,  the 
quota  of  each  State  must  be  fixed  according  to  the 
census,  and  in  conformity  to  the  rule  of  apportionment 
prescribed  by  the  Constitution.  K  indirect  taxation  be 
resorted  to,  the  same  duty  must  be  imposed  on  the 
article  liable  to  it,  whether  its  quantity  or  consumption 
be  greater  or  less  in  the  respective  States. 

The  Judicial  construction  given  to  the  powers  of 
Congress  relative  to  taxation  has  generally  turned  on 
this  distinction.  By  an  Act  passed  in  1794,  a  duty  was 
laid  upon  carriages  for  the  conveyance  of  persons  ;  and 
the  question  arose  whether  it  were  a  direct  tax,  within 
the  meaning  of  the  Constitution.  If  it  were  not  a 
direct  tax,  it  was  admitted  to  be  rightly  laid  ;  but  if  it 
were  a  direct  tax,  it  was  not  constitutionally  imposed  ; 
because,  in  that  case,  it  should  have  been  laid  according 
to  the  representative  numbers  of  the  several  States. 
The  Circuit  Court  for  Virginia,  where  the  question 
arose,  was  divided  in  opinion ;  but  on  appeal  to  the 
Supreme  Court,  it  was  decided  that  the  tax  in  question 
was  not  a  direct  tax,  and  had,  therefore,  been  levied 
according  to  the  Constitution.  It  was  observed,  on  this 
occasion,  that  the  Constitution  contemplated  no  taxes 
as  direct  taxes  but  such  as  could  be  laid  in  proportion 
to  the  census ;  and  that  the  rule  of  apportionment  could 
not  apply  to  the  tax  on  carriages  ;  nor  could  such  a  tax 
be  laid  by  that  rule,  without  great  inequality  and  in- 
justice ;  and  the  argument  by  which  this  inequality 
and  injustice  were  shown  was  conclusive  against  the 


216  LECTURES   ON 

contrary  construction.^  But  although  duties  must  be 
uniform,  and  direct  taxes  apportioned  according  to 
numbers,  yet  the  provision  of  the  Constitution  with 
respect  to  the  latter  does  not  restrict  the  power  of  Con- 
gress to  impose  taxes  on  the  inhabitants  of  the  States 
only,  but  extends  equally  to  all  places  over  which 
the  Federal  Government  has  jurisdiction ;  and  applies 
to  the  District  of  Columbia,  and  to  the  Territories, 
which  are  not  represented  in  Congress.^  The  power  of 
Congress  to  exercise  exclusive  legislation,  in  all  cases 
whatsoever,  over  the  District  of  Columbia,  includes  the 
power  of  taxing  its  inhabitants.  But  Congress  are  not 
absolutely  to  exercise  that  power,  though  they  may,  in 
their  discretion,  extend  a  tax  to  all  the  Territories  of 
the  United  States,  as  well  as  to  the  States.  A  direct 
tax,  if  laid  at  all,  must  be  laid  according  to  the  census  ; 
and,  therefore.  Congress  has  no  authority  to  exempt  any 
State  from  its  due  share  of  the  burden ;  and  although 
they  are  not  under  the  same  necessity  of  extending  a 
tax  to  the  unrepresented  District,  set  apart  for  the  seat 
of  the  National  Government,  nor  to  the  National  Ter- 

1  3  Dall.  171.  An  Act  of  Congress  laying  duties  on  stamped  paper, 
&c.,  which  enacted  that  certain  deeds  and  writings  should  not  be 
given  in  evidence  in  any  Court,  until  stamped  as  required  by  the  Act, 
was  held  to  be  constitutional.  1  Virg.  Cos.  128.  But  a  tax  imposed 
by  a  State  law  on  stock  issued  for  loans  made  to  the  United  States  is 
unconstitutional.  2  Peters,  4i9.  See  also  3  Har.  Sf  McHen.  169; 
4  Ham.  107  ;  5  Ibid.  14  ;  4  iV.  H.  565,  572  ;  5  Hayw.  246  ;  2  Overt. 
215 ;  2  Haivks,  207 ;  1  Yerg.  452 ;  9  Ibid.  490.  The  charter  of  a 
bank  is  a  franchise  which  is  not  taxable  as  such,  if  a  price  has  been 
paid  for  it,  and  accepted  by  the  Legislature.  But  the  corporate  prop- 
erty of  the  bank  is  separate  from  the  franchise,  and  may  be  taxed, 
unless  there  is  a  special  agreement  to  the  contrary.     3  Howard,  133. 

2  5  JVheat.  317. 


CONSTITUTIONAL  JURISPRUDENCE.  217 

ritories,  yet,  if  the  tax  be  actually  extended  to  them, 
the  same  constitutional  rule  of  apportionment  must  be 
applied  in  levying  it.  This  construction  allowing  a 
discretion  in  Congress  as  to  the  imposition  of  taxes 
upon  the  inhabitants  of  these  Territories,  must,  at  all 
events,  be  admitted  to  be  the  most  convenient,  as  the 
expense  of  collecting  a  tax  in  some  of  them  might 
exceed  its  amount.  Nor  can  this  departure  from  the 
rule  which  holds  representation  and  taxation  to  be  in- 
separable, be  considered  very  material  or  important 
with  respect  to  those  settlements  which  are  still  in  their 
infancy,  though  rapidly  advancing  to  manhood,  and 
looking  forward  with  perfect  confidence  to  complete 
equality  as  soon  as  they  attain  the  requisite  maturity. 
As  it  relates  to  the  District  of  Columbia,  the  construc- 
tion in  question  can  hardly  be  regarded  as  impugning 
the  great  principle  alluded  to,  inasmuch  as  its  inhabi- 
tants have  voluntarily  relinquished  the  right  of  repre- 
sentation, and  adopted  the  whole  body  of  Congress  as 
its  legitimate  Government. 

There  is  nothing,  however,  in  the  exclusive  power 
of  legislation  vested  in  Congress  over  the  District  of 
.  Columbia,  which  necessarily  confines  the  operation  of 
laws  made  in  virtue  of  that  power,  to  the  limits  of  the 
District.  The  power  in  question  being  conferred  by  the 
Constitution,  carries  with  it  all  those  incidental  powers 
which  are  necessary  to  its  complete  and  effectual  execu- 
tion. Congress,  when  legislating  for  this  District,  is 
still  the  Legislature  of  the  Union,  and  its  Acts,  in 
relation  to  it,  are  laws  of  the  United  States.* 

A  question,  however,  of  much  greater  interest  and 

1  6  Wheat.  i2i. 
19 


218  LECTUKES   ON 

importance  has  arisen,  in  regard  to  this  power  of  taxa- 
tion, which,  of  late  years,  has  been  much  discussed  in 
our  public  councils,  and  has  hardly  yet  ceased  to  agitate 
a  portion  of  the  Union.  I  refer  to  the  authority  of 
Congress  to  impose  duties  on  articles  of  foreign  impor- 
tation for  the  encouragement  and  protection  of  domestic 
manufactures ;  and  to  the  proceedings  which  call  in 
question  and  deny  the  constitutional  existence  of  any 
such  authority  in  Congress,  and  denounce  its  exercise 
as  usurpation.  The  constitutional  validity  of  those 
Acts  of  Congress  which  impose  duties  on  importations, 
with  that  end  in  view,  has  never  been  presented  for 
adjudication  in  the  Federed  Courts,  but  a  Legislative 
construction  in  favor  of  the  right  of  Congress  to  pass 
them  was  adopted  and  acted  upon  at  the  earliest  period 
of  the  existence  and  operation  of  the  Federal  Govern- 
ment. Of  late  years,  however,  a  controversy  has  arisen 
on  the  subject,  which  at  one  time  threatened  the  peace 
and  integrity  of  the  Union  ;  and  which,  though  sus- 
pended, can  by  no  means  be  considered  as  definitively 
settled.  Some  examination,  therefore,  of  its  merits  may 
be  usefud,  if  not  necessary. 

Although  Congress  has  the  express  and  exclusive 
power  "  to  lay  and  collect  duties,  imposts,  and  excises, 
to  pay  the  debts,  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States,"  ^  yet  it  is 
denied  that  these  words  confer  authority  to  lay  duties 
and  imposts  for  any  other  purposes  than  those  of  dis- 
charging the  national  debts,  supporting  the  civil  and 
military  establishments  of  the  Government,  and  of  car- 
rying into  effect  the  powers  specifically  enumerated,  and 

1  Const.  U.  S.,  Art.  I.  Sect.  viii. 


CONSTITUTIONAL   JURISPRUDENCE.  219 

vested  by  the  Constitution  in  Congress;  thus  excluding 
from  all  share  of  meaning  the  last  member  of  the 
clause,  which  specifies  the  "  general  welfare "  as  one 
of  the  objects  for  which  this  branch  of  taxation  was 
wholly  given  up  to  the  National  Government.  And 
while  some  contend  that  there  is  no  express  authority 
granted  to  Congress  to  lay  duties  on  foreign  commodi- 
ties, in  order  to  favor  or  protect  similar  productions  and 
fabrics  of  our  own  growth  or  manufacture — nor  any 
power,  express  or  implied,  to  encourage  domestic  in- 
dustry by  any  means  whatsoever ;  and  that  no  such 
authority  or  power  arises  from  intendment,  as  necessary 
to  carry  into  effect  any  of  the  enumerated  powers ; 
others  allege  that  this  authority,  if  it  exist  at  all,  can 
only  be  constitutionally  exercised  indirectly,  as  resulting 
incidentally  from  the  power  to  regulate  commerce  with 
foreign  nations ;  and  that  imposts  beyond  what  may  be 
requisite  to  provide  a  revenue  to  meet  the  necessary 
and  ordinary  expenditures  of  the  Government,  can  only 
be  imposed  to  the  extent  required  to  countervail  the 
commercial  restrictions  of  other  countries. 

It  will  be  perceived,  in  the  first  place,  that  this  expo- 
sition of  the  power  in  question  denies,  in  effect,  any 
operation  whatever  to  that  branch  of  the  clause  in  the 
Constitution  by  which  it  is  supposed  to  be  conferred ; 
and  thus  adopts  the  opposite  extreme  to  that  latitude 
of  construction  which  would  give  to  the  expressions 
relative  to  providing  for  the  "  general  welfare,"  a  mean- 
ing more  extensive  than  any  other  part  of  the  Consti- 
tution, and  invest  Congress  with  a  general  power  of 
legislation.  It  is,  however  "  awkward,"  a  sound  rule  of 
construction,  and  admitted  to  be  universal  in  its  appli- 
cation, that  the  different  parts  of  the  same  instrument 


220  LECTURES   ON 

are  to  be  so  expounded  as  to  give  effect  to  the  whole, 
and  to  evety  portion  susceptible  of  meaning.  It  is 
not  to  be  presumed  that  the  words  in  question  were 
introduced  without  some  object ;  they  are  not,  there- 
fore, to  be  excluded  from  all  share  in  the  interpretation 
of  the  clause,  unless  incapable  of  bearing  any  significa- 
tion in  connection  with  those  with  which  they  are  con- 
joined. But  the  specific  ends  embraced  by  these  general 
terms  cannot  certainly  be  supposed  to  be  comprised 
among  those  more  definite  objects,  subsequently  enu- 
merated in  another  and  separate  clause  in  the  same 
article  of  the  Constitution  ;  and  it  must,  therefore,  be 
intended  that  other  objects  were  meant  to  be  accom- 
plished by  means  of  the  taxing  power,  than  the  pay- 
ment of  the  "  public  debt,"  and  providing  for  the 
"  common  defence ; "  and  that  those  further  objects 
comprehend  everything  to  which  the  "  general  welfare  " 
requires  the  power  to  be  applied,  as  the  direct  means 
of  effecting  the  end  proposed. 

A  different  view  was,  indeed,  taken  of  this  clause  of 
the  Constitution  by  the  authors  of  "  The  Federalist ; " ' 
and  that  high  authority  has  been  quoted  in  support 
of  a  very  different  interpretation.  In  answering  the 
objection  urged  against  the  general  expressions  with 
which  the  clause  concludes,  as  conferring  a  distinct  and 
substantive  power  "  to  provide  for  the  common  defence 
and  general  welfare  of  the  United  States,"  the  authors 
of  "  The  Federalist "  did  not  advert  to  the  circumstance 
that  those  expressions  are  used  merely  as  a  general  and 
summary  designation  of  the  purpose  for  which  taxes 
were  to  be  laid,  independently  of  the  objects  subse- 

1  No.  41,  by  Mr.  Madison. 


CONSTITUTIONAL  JURISPRUDENCE.  221 

quently  specified ;  but  in  refuting  the  objection,  they 
seem  to  adopt,  in  part,  the  construction  of  their  adver- 
saries, and  admit  that  the  words  in  question  confer  a 
substantive  and  independent  power,  distinct  from  the 
power  of  taxation  ;  and  they  meet  the  argument  drawn 
from  these  terms,  against  this  extensive  and  sweeping 
operation  of  the  power,  by  alleging  that  it  was  restricted 
by  the  subsequent  enumeration  of  the  specific  powers 
of  Congress  in  the  same  section.  It  has  since,  however, 
been  judicially  decided,  and  is  even  admitted  by  those, 
who,  nevertheless,  seek  to  avail  themselves  of  this  au- 
thority, that  these  words  do  not  invest  Congress  with 
any  power  whatsoever  distinct  from  the  power  of  taxa- 
tion, but  that  they  merely  refer  to  the  purposes  for 
which  that  power  may  be  exercised.  So  far,  moreover, 
from  affording  support  to  the  argument  against  the 
power  of  Congress  to  encourage  manufactures,  two  of 
the  authors  of  "  The  Federalist,"  ^  soon  after  the  or- 
ganization of  the  Government,  officially  asserted  that 
power  to  be  exclusively  vested  in  Congress,  which  body, 
they  contended,  was  bound  to  exercise  it.  They  de- 
rived it,  indeed,  from  the  power  to  regulate  commerce ; 
but  the  acknowledged  construction  of  the  clause  con- 
ferring the  power  of  taxation,  referring  to  the  exercise 
of  that  power,  as  the  means  or  instrument  of  providing 
for  the  general  welfare,  affords  an  ampler  basis  for  the 
right ;  and  in  order  to  establish  it  on  this  broader  and 
more  solid  foundation,  it  becomes  necessary  to  show 
that  the   "  general  welfare "  is,  in   fact,  promoted  by 

1  Mr.  Hamilton,  as  Secretary  of  the  Treasury,  in  his  celebrated 
Report  on  Domestic  Manufactures ;  and  Mr.  Madison,  as  a  member 
of  the  House  of  Representatives,  in  his  support  of  the  Bill  for  their 
encouragement. 

19* 


222  LECTURES   ON 

imposing   duties   on  foreign   commodities   to  such  an 
amount  as  will  foster  our  home  manufactures. 

This  is  clearly  a  question, of  national  policy  and 
legislation,  involving  facts  and  opinions  not  cognizable, 
from  their  nature,  in  the  Judicial  tribunals,  but  depend- 
ing for  their  determination  upon  a  sound  exercise  of 
legislative  discretion.  Their  decision  must  of  necessity 
belong  to  the  National  Legislature ;  for  the  States 
cannot  aiford  the  protection  in  the  mode  contemplated, 
inasmuch  as  they  are  prohibited  from  laying  any  duties 
on  imports,  except  such  as  may  be  necessary  for  execut- 
ing their  own  health  and  inspection  laws,  and  have  no 
power  whatsoever  to  regulate  commerce.  Whatever, 
therefore,  may  be  the  opinions  of  the  most  enlightened 
men  as  to  the  policy  of  protecting  domestic  manufac- 
tures, or,  in  other  words,  as  to  the  question  whether  the 
"  general  welfare "  is  promoted  by  the  imposition  of 
duties  on  imports  with  that  view,  those  opinions  must 
necessarily  be  founded  on  facts  and  principles  of  politi- 
cal economy,  concerning  which  none  but  the  National 
Legislature  can,  for  any  practical  purpose,  authorita- 
tively decide.  The  necessity  of  vesting  in  Congress  the 
power  of  determining  such  a  question,  may  be  illus- 
trated by  analogy  from  the  power  of  the  President  to 
judge  of  the  existence  of  the  exigency  upon  which  his 
power  of  calling  forth  the  militia  is  made  to  depend. 
Without  such  authority,  we  have  seen  that  both  the 
existence  of  the  exigency  and  the  legality  of  the  pro- 
ceedings would  turn,  not  on  his  knowledge  or  belief  of 
the  one,  or  his  judgment  on  the  other,  but  upon  the 
verdict  of  a  jury  as  to  the  facts,  and  the  judgment  of 
the  Court  on  the  legal  questions  they  might  present. 
So  with  respect  to  the  power  now  under  consideration ; 


CONSTITUTIONAL  JURISPIIUDENCE.  223 

unless  Congress  have  authority  to  decide  on  the  cir- 
cumstances upon  which  the  exercise  of  their  legislative 
discretion  depends,  both  facts  and  principles  of  a  com- 
plicated character,  concerning  which  great  conflict  of 
opinions  exists,  would  be  subject  to  Judicial  examina- 
tion, and  a  construction  given  to  the  Constitution,  not 
merely  by  the  judgment  of  the  Court  on  the  question 
whether  Congress  is  authorized  "  to  lay  duties  to  pro- 
vide for  the  general  welfare,"  but  upon  the  opinion  of 
the  Jury  whether  "the  general  welfare"  was,  upon 
sound  principles  of  public  policy,  in  fact  promoted  by 
protective  duties. 

With  regard  to  the  existing  laws  imposing  duties  on 
imported  articles,  the  objection,  so  far  as  founded-  on 
the  nature  of  the  objects  to  which  the  revenue  thus 
produced  is  applied,  loses  much  of  its  force,  from  the 
circumstance  that  these  laws  were  passed  before  the 
extinction  of  the  public  debt,  for  the  payment  of  which, 
as  well  as  to  the  support  of  the  national  institutions, 
the  proceeds  of  those  duties  were  intended  to  be  ap- 
plied. Whether  they  have,  in  fact,  been  so  applied, 
or  to  what  purposes  the  surplus  arising  from  them  has 
been,  from  time  to  time,  appropriated,  are  questions 
wholly  independent  of  the  constitutional  validity  of 
laws  merely  authorizing  feuch  duties  to  be  collected. 
When  collected,  and  paid  into  the  National  Treasury, 
they  are  mingled  with  the  general  mass  of  funds,  and 
are  at  the  disposal  of  Congress  ;  and  as,  by  the  Consti- 
tution, "  no  money  can  be  drawn  from  the  treasury  but 
in  pursuance  of  appropriations  made  by  law,"  ^  the 
question  as  to  the  constitutionality  of  the  objects  to 

1  Const.  U.  S.,  Art.  I.  Sect.  ix.  7, 


224  LECTURES   ON 

which  any  part  of  the  public  revenues  may  be  applied 
can  never  arise,  until  a  law  be  proposed  or  enacted  for 
their  specific  appropriation. 

It  has  been,  moreover,  objected,  that  the  existing  laws, 
imposing  duties  on  imports,  are  unequal  in  their  opera- 
tion, and  therefore  contrary  to  that  provision  of  the 
Constitution  which  requires  all  duties  to  be  "  uniform 
throughout  the  United  States."  But  the  uniformity 
required  is  plainly  in  the  imposition,  and  not  in  the 
operation  of  the  duties ;  and  whatever  may  be  the  fact 
as  to  the  inequality  of  their  operation,  it  is  equally 
plain  that  it  never  can  be  controlled  by  the  Legislature, 
but  must  always  be  regulated  by  the  consumption  of 
the*  article ;  for  all  indirect  taxes,  except  imposts  on 
articles  of  absolute  necessity,  may  be  said  to  be  volun- 
tary in  their  operation  ;  as  the  amount  paid  by  any 
individual  must  always  depend  on  his  spontaneous 
purchase  of  the  article. 

In  the  late  war  with  Mexico,  the  port  of  San  Fran- 
cisco was  conquered  by  the  arms  of  the  United  States, 
in  1846,  and  shortly  afterwards  they  had  military  pos- 
session of  the  whole  of  California.  Early  in  1847,  the 
President  of  the  United  States,  as  Commander-in-chief 
of  the  army  and  navy,  authorized  the  military  and 
naval  commanders  of  the  United  States  forces  in  Cali- 
fornia, in  the  exercise  of  the  belligerent  rights  of  con- 
quest, to  form  a  military  government  for  the  conquered 
territory,  with  power  to  impose  duties  on  imposts  and 
tonnage,  for  the  support  of  the  army  which  had  the 
conquest  in  possession.  This  was  done,  and  tonnage 
and  import  duties  were  levied  under  a  war-tariff,  estab- 
lished by  the  civil  Government  for  that  purpose,  until 
official  notice  was  received  that  a  treaty  of  peace  had 


CONSTITUTIONAL  JURISPRUDENCE.  225 

been  concluded  with  Mexico  —  by  which  Upper  Cali- 
fornia was  ceded  to  the  United  States.  Upon  receiving 
this  intelligence,  the  Governor  directed  that  imports 
and  tonnage  duties  should  thereafter  be  levied  in  con- 
formity with  such  paid  in  other  parts  of  the  United 
States  under  the  Acts  of  Congress ;  and  for  the  pur- 
pose of  collecting  them,  he  appointed  a  Collector  for  the 
port  of  San  Francisco. 

A  suit  was  brought  against  the  Collector  to  recover 
from  him  the  amount  of  certain  duties  paid  by  the  plain- 
tiffs between  the  3d  of  February,  1848, — the  date  of  the 
treaty  of  peace, —  and  the  13th  of  November,  1849,  when 
the  Collector  appointed  by  the  President  entered  upon 
the  duties  of  his  office  —  upon  the  ground  that  they 
had  been  illegally  exacted.  The  Supreme  Court  of  the 
United  States  decided  that  these  duties  were  legally 
demanded  and  collected  by  the  civil  Governor,  both 
during  the  war,  and  after  the  ratification  of  the  treaty 
of  peace,  until  the  revenue  laws  of  the  United  States 
were  extended  by  Congress  to  California.^ 

VI.  The  power  of  borrowing  money  on  the  credit  of 
the  United  States  is  conferred  on  the  National  Govern- 
ment in  general  terms ;  but  as  the  public  credit  of  the 
Union  must  depend  on  the  sources  of  revenue  placed 
at  its  command,  this  power  must  have  been  intended  to 
be  exercised  in  anticipation  of  the  national  resources, 
and  must,  consequently,  be  subject  to  the  same  restric- 
tions as  to  its  objects,  to  which  the  power  of  taxation 
is  limited  and  confined. 

When  the  present  Constitution  was  adopted,  the 
United  States  were  indebted  to  foreign  nations  for  the 

1   16  Howard,  164. 


226  LECTURES   ON 

expenses  of  our  revolutionary  war ;  and  many  of  our 
own  citizens  had  large  claims  either  upon  the  Confed- 
eracy, or  upon  its  separate  members,  for  services  and 
supplies  during  that  eventful  contest.  To  liquidate  and 
consolidate  those  debts,  discharge  a  part  of  them,  and 
secure  the  remainder,  were  measures  necessary  to  the 
preservation  of  the  public  faith  and  credit,  and  the 
maintenance  of  the  public  interests,  both  at  home  and 
abroad.  But  to  have  resorted  to  taxation,  in  order 
immediately  to  accomplish  these  objects,  would,  had  it 
even  been  practicable,  have  proved  injurious  to  the 
nation,  and  ruinous  to  private  individuals.  It  was  fore- 
seen that  many  of  the  public  creditors  would  be  satis- 
fied with  the  assumption  or  recognition  by  the  new 
Government  of  the  principal,  and  the  payment  of  the 
interest  of  the  public  debts.  Under  the  power  con- 
ferred on  Congress  to  borrow  money,  it  was  enabled  to 
make  the  necessary  provisions  for  combining  the  whole 
expenses  of  the  war,  whether  incurred  by  the  Confed- 
eracy or  the  States,  in  one  general  amount,  and  funding 
it  as  one  consolidated  debt.  The  sources  of  revenue 
placed  at  the  disposal  of  the  Federal  Government  have 
since  enabled  it  to  discharge,  not  only  the  whole  of  this 
debt,  but  that,  also,  which  occurred  in  the  last  war  with 
Great  Britain.  But  in  case  of  future  exigencies,  or  a 
failure  of  the  usual  supplies  of  revenue,  similar  means 
are  at  its  command  for  continuing  its  operations,  main- 
taining its  existence,  and  vindicating  its  honor. 


CONSTITUTIONAL  JURISPRUDENCE.  227 


LECTURE    VIII. 

ON   THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERNMENT  FOR 
,  REGULATING   INTERCOURSE   WITH  FOREIGN   NATIONS. 

The  powers  vested  in  the  General  Government  for 
regulating  foreign  intercourse,  consist, 

First.  Of  the  powers  to  make  treaties,  and  to  send 
and  receive  Ambassadors,  and  other  public  Ministers, 
and  Consuls. 

Secondly.  Of  the  power  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  other 
offences  against  the  law  of  nations  ;  and, 

Thirdly.  Of  the  power  of  regulating  foreign  com- 
merce ;  including  a  power  to  prohibit,  after  a  certain 
period,  now  elapsed,  the  importation  of  slaves. 

This  class  of  powers  forms  an  obvious  and  essential 
branch  of  Federal  administration  ;  for  if  the  United 
States  are  one  nation  in  any  respect,  they  are  most 
clearly  so  in  respect  to  other  nations. 

I.  The  powers  to  make  treaties.,  and  to  send  and  re- 
ceive Ambassadors  and  other  public  Ministers,  and  Con- 
suls, are  essential  attributes  of  national  sovereignty, 
and  of  that  international  equality  which  the  interests 
of  every  sovereignty  require  it  to  preserve.  Both  powers 
were  possessed  by  Congress  under  the  Confederation, 
but  not  to  the  extent  to  which  they  are  now  enjoyed  ; 
for  then  the  former  power  was  embarrassed  by  an  ex- 


228  LECTURES   ON 

ception,  under  which  treaties  might  be  substantially 
frustrated  by  regulations  of  the  States,  and  the  latter 
did  not  comprehend  "  other  public  ministers  and  con- 
suls." 

As  treaties  with  France  and  Holland,  and  especially 
the  treaty  of  peace  with  Great  Britain,  existed  when 
the  Constitution  was  adopted,  it  became  necessary  to 
vary  its  terms  in  regard  to  treaties,  from  those  relative* 
to  the  laws  of  the  United  States ;  the  declaration  it 
contains  in  respect  to  the  supremacy  of  the  latter  oper- 
ating only  in  future,  while  in  reference  to  the  former 
the  terms  are,  "  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land."  These  terms  were  intended 
to  apply  equally  to  previously  existing  treaties,  as  well 
as  to  those  made  subsequently  to  the  Constitution  ;  and 
it  has,  accordingly,  been  adjudged,  by  the  Supreme 
Court,  that  they  effectually  repeal  so  much  of  the  State 
laws  and  Constitutions  as  are  repugnant  to  them.^ 

More  general  and  extensive  terms,  also,  are  used  in 
vesting  the  power  with  respect  to  treaties,  than  in  con- 
ferring that  relative  to  laws;  and,  while  the  latter  is 
laid  under  several  restrictions,  there  are  none  imposed 
on  the  exercise  of  the  former,  notwithstanding  it  is 
committed  to  the  President  and  Senate,  in  exclusion  of 
the  House  of  Representatives,  and  is  executed  through 
the  instrumentality  of  agents  delegated  for  the  purpose. 
And  although  the  President  and  Senate  are  thus  in- 
vested with  this  high  and  exclusive  control  over  all  those 
subjects  of  negotiation  with  foreign  powers,  which,  in 
their  consequences,  may  affect  important  domestic  in- 

1  3  Ball.  199. 


CONSTITUTIONAL  JURISPRUDENCE.  229 

terests,  yet  it  would  have  been  impossible  to  have 
defined  a  power  of  this  nature,  and,  therefore,  general 
terms  only  were  used.  These  general  expressions,  how- 
ever, ought  strictly  to  be  confined  to  their  legitimate 
signification  ;  and  in  order  to  ascertain  whether  the 
execution  of  the  treaty-making  power  can  be  supported 
in  any  given  case,  those  principles  of  the  Constitution, 
from  which  the  power  proceeds,  should  carefully  be 
applied  to  it.  The  power  must,  indeed,  be  construed 
in  subordination  to  the  Constitution  ;  and  however,  in 
its  operation,  it  may  qualify,  it  cannot  supersede  or 
interfere  with,  any  other  of  its  fundamental  provisions, 
nor  can  it  ever  be  so  interpreted  as  to  destroy  other 
powers  granted  by  that  instrument.  A  treaty  to  change 
the  organization  of  the  Government,  or  annihilate  its 
sovereignty,  or  overturn  its  Republican  form,  or  to  de- 
prive it  of  any  of  its  constitutional  powers,  would  be 
void ;  because  it  would  defeat  the  will  of  the  people, 
which  it  was  designed  to  fulfil. 

A  treaty,  in  its  general  sense,  is  a  compact  entered 
into  with  a  foreign  power,  and  extends  to  all  matters 
which  are  usually  the  subject  of  compact  between  in- 
dependent nations.  It  is,  in  its  nature,  a  contract^  and 
not  a  Legislative  act ;  and  does  not,  according  to  gen- 
eral usage,  effect  of  itself  the  objects  intended  to  be 
accomplished  by  it,  but  requires  to  be  carried  into  exe- 
cution by  some  subsequent  act  of  sovereign  power  by 
the  contracting  parties,  especially  in  cases  where  it  is 
meant  to  operate  within  the  territories  of  either  of  them. 
With  us,  however,  a  different  principle  is  established, 
in  certain  cases.  It  has  been  settled  by  the  Supreme 
Court,^  that,  inasmuch  as  the  Constitution  declares  a 

12  Peters,  314. 

20 


230  LECTURES   ON 

treaty  to  be  the  law  of  the  land,  it  is  to  be  regarded  in 
Courts  of  Justice  as  equivalent  to  an  act  of  the  Legis- 
lature, whenever  it  operates  of  itself  without  requiring 
the  aid  of  any  legislative  provision.  But  when  the 
terms  of  any  treaty  stipulation  import  an  executory 
contract,  it  addresses  itself  to  the  political,  and  not  to 
the  Judicial,  department  for  execution,  and  Congress 
must  pass  a  law  in  execution  of  the  compact,  before 
it  becomes  a  rule  for  the  Courts.  The  Constitution 
does  not  expressly  declare  whether  treaties  are  to  be 
held  superior  to  the  Acts  of  Congress,  or  whether  the 
laws  are  to  be  deemed  coequal  with,  or  superior  to 
treaties  ;  but  the  representation  it  holds  forth  to  foreign 
powers,  is  that  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  may  bind  the  nation  in  all 
legitimate  contracts ;  and  if  preexisting  laws,  contrary 
to  a  treaty,  could  only  be  abrogated  by  Congress,  this 
representation  would  be  fallacious.  It  would  subject 
the  public  faith  to  just  imputation  and  reproach,  and 
destroy  all  confidence  in  the  national  engagements. 
The  immediate  operation  of  a  treaty  must,  therefore, 
be  to  overrule  all  existing  laws  incompatible  with  its 
stipulations. 

Nor  is  this  inconsistent  with  the  power  of  Congress 
to  pass  subsequent  laws,  qualifying,  altering,  or  wholly 
annulling  a  treaty;  for  such  an  authority,  in  certain 
cases,  is  supported  on  grounds  wholly  independent  of 
the  treaty-making  power.  For,  as  Congress  possesses 
the  sole  right  of  declaring  war,  and  as  the  alteration  or 
abrogation  of  a  treaty  tends  to  produce  it,  the  power 
in  question  may  be  regarded  as  an  incident  to  that  of 
declaring  war.  The  exercise  of  such  a  right  may  be 
rendered  necessary  to  the  public  welfare  and  safety,  by 


CONSTITUTIONAL  JURISPIIUDENCE.  231 

measures  of  the  party  with  whom  the  treaty  was  made, 
contrary  to  its  spirit,  or  in  open  violation  of  its  letter ; 
and  on  such  grounds  alone  can  this  right  be  reconciled 
either  with  the  provisions  of  the  Constitution,  or  the 
principles  of  public  law.  A  memorable  instance  has 
occurred  in  our  history  of  the  annulment  of  a  treaty 
by  the  act  of  the  injured  party.  In  the  year  1798, 
Congress  declared  that  the  treaties  with  France  were 
no  longer  obligatory  on  the  United  States,  as  they  had 
been  repeatedly  violated  by  the  French  Government, 
and  our  just  claims  for  reparation  disregarded.  Never- 
theless, all  treaties,  as  soon  as  ratified  by  competent 
authority,  become  of  absolute  efficacy,  and,  as  long  as 
they  continue  in  force,  are  binding  upon  the  whole 
nation.  If  a  treaty  require  the  payment  of  money  to 
carry  it  into  effect,  and  the  money  can  only  be  raised 
or  appropriated  by  an  Act  of  the  Legislature,  it  is 
morally  obligatory  upon  the  legislative  power  to  pass 
the  requisite  law  ;  and  its  refusal  to  do  so  would 
amount  to  a  breach  of  the  public  faith^  and  afford  just 
cause  of  war.  That  department  of  the  Government 
which  is  intrusted  with  the  power  of  making  treaties 
may  bind  the  national  faith  at  its  discretion ;  for  the 
treaty-making  power  must  be  coextensive  with  the 
national  exigencies,  and  necessarily  involves  in  it  every 
branch  of  the  national  sovereignty,  of  which  the  opera- 
tion may  be  necessary  to  give  effect  to  negotiations  and 
compacts  with  foreign  nations.  If  a  nation  have  con- 
ferred on  its  Executive  department,  without  reserve, 
the  right  of  treating  and  contracting  with  other  sov- 
ereignties, it  is  considered  as  having  invested  it  with 
all  the  power  necessary  to  make  a  valid  contract,  be- 
cause that  department  is  the  organ  of  the  Government 


28^  LECTURES   ON 

for  the  purpose,  and  its  contracts  are  made  by  the 
deputed  will  of  the  nation.  The  fundamental  laws  of 
the  State  may  withhold  from  it  the  power  of  alienating 
the  public  domain,  or  other  property  belonging  to  it ; 
but  if  there  be  no  express  provision  of  that  kind,  the 
inference  is  that  it  has  confided  to  the  department, 
charged  with  the  duty  and  the  power  of  making  trea- 
ties, a  discretion  commensurate  with  all  the  great  in- 
terests of  the  nation.! 

The  concurrence  of  each  branch  of  the  Legislative 
power,  we  have  seen,  is  necessary  to  a  declaration  of 
war,  while  the  President,  with  the  advice  and  consent 
of  the  Senate  alone,  may  conclude  a  treaty  of  peace. 
Now  a  power  to  make  treaties  necessarily  implies  a 
power  to  settle  the  terms  on  which  they  shall  be  con- 
cluded ;  and  foreign  States  could  not  deal  safely  with 
the  Government  on  any  other  presumption.  That 
branch  of  the  Government  which  is  intrusted  thus 
largely  and  generally  with  authority  to  make  valid 
treaties  of  peace,  can,  of  course,  bind  the  nation  by 
the  alienation  of  part  of  its  territory ;  and  this,  accord- 
ing to  an  approved  writer  on  the  law  of  nations,^  is 
equally  the  case,  whether  that  territory  be  already  in 
the  occupation  of  the  enemy,  or  remain  in  possession 
of  the  nation,  or  whether  the  property  be  public  or 
private.  In  a  case  decided  in  the  Supreme  Court  of 
the  United  States,  it  was  admitted  that  individual 
rights  acquired  by  war,  and  vested  rights  of  the  citizen, 
might  be  sacrificed  by  treaty  for   national  purposes.^ 

»  Vattel's  Law  of  Nations,  b.  1,  ch.  21,  §  2  ;  3  Dull.  199  ;  Grotius's 
Law  of  War  and  Peace,  b.  3,  ch.  20,  §  7. 

2  /JiW.  b.  4,  ch.  2,  §  11,  12. 

3  1  Crunch,  103. 


CONSTITUTIONAL  JURISPRUDENCE.  233 

And  in  another  case,  it  was  held  to  be  a  clear  principle 
of  national  law,  that  private  rights  might  be  surren- 
dered by  treaty  to  secure  the  public  safety,  but  the 
Government  would  be  bound  to  make  compensation 
and  indemnity  to  the  individual  whose  rights  had  thus 
been  sacrificed. 

The  conclusion  of  a  treaty  of  commerce  and  navi- 
gation with  Great  Britain,  in  1794,  gave  rise  to  much 
public  discussion  as  to  the  nature  and  extent  of  the 
treaty-making  power.  A  resolution  was  passed  by  the 
House  of  Representatives,  requiring  the  President  to 
lay  before  them  a  copy  of  his  instructions  to  the  Min- 
ister who  conducted  the  negotiation,  with  the  corre- 
spondence and  other  documents,  relative  to  the  treaty, 
excepting  such  papers  as  any  existing  negotiations 
might  render  it  improper  to  disclose.  The  illustrious 
individual  who  then  held  the  office  of  President,  re- 
turned for  answer,  "  that,  in  his  opinion,  the  power  of 
making  treaties  was  exclusively  vested  in  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  pro- 
vided two  thirds  of  the  Senators  present  concurred  in 
the  ratification  ;  and  that  any  treaty  so  made  and  rati- 
fied, on  being  duly  promulgated,  became  the  law  of  the 
land.  It  was  thus,"  he  added,  "  that  the  treaty-making 
power  had  been  understood  by  foreign  nations;  and 
that  in  all  treaties  made  with  them,  we  had  declared, 
and  they  had  believed,  that,  when  so  ratified,  they  be- 
came  obligatory  on  the  nation."  In  this  construction 
of  the  Constitution,  every  former  House  of  Represen- 
tatives had  acquiesced,  and  until  that  time  not  a  doubt 
or  suspicion  had  appeared,  to  his  knowledge,  that  it 
was  held  not  to  be  the  true  construction  ;  and  he 
concluded  by  observing  that  "  it  was  perfectly  clear  to 
20* 


234  LECTURES   ON 

his  understanding,  that  the  consent  of  the  House  of 
Representatives  was  not  necessary  to  the  validity  of  a 
treaty.  As  the  treaty  in  question  exhibited  in  itself  all 
the  objects  requiring  Legislative  provision,  upon  which 
the  papers  called  for  could  throw  no  light,  and  that,  as 
it  was  essential  to  the  due  administration  of  the  Gov- 
ernment that  the  boundaries  fixed  by  the  Constitution 
between  the  different  departments  should  be  preserved, 
a  just  regard  to  the  Constitution,  and  to  the  duties  of 
his  office,  forbade  a  compliance  with  their  request." 

The  principles  thus  laid  down  by  General  Washing- 
ton were  so  far  acquiesced  in  by  the  House,  that  they 
passed  a  resolution,  disclaiming  the  power  to  interfere 
in  making  treaties ;  but  asserting  the  right  of  the  House 
of  Representatives,  whenever  stipulations  are  made  on 
subjects  committed  by  the  Constitution  to  Congress,  to 
deliberate  on  the  expediency  of  carrying  them  into 
effect;  and  subsequently  it  was  declared,  by  a  small 
majority,  to  be  expedient  to  pass  the  laws  necessary 
for  carrying  the  treaty  into  effect.  From  that  time  the 
question  remained  undisturbed  until  the  conclusion  of 
a  convention  with  Great  Britain,  in  1815,  when  the 
House  of  Representatives,  after  much  debate,  passed  a 
bill  specifically  enacting,  on  a  particular  subject,  the 
same  provisions  which  were  contained  as  stipulations 
in  the  treaty.  This  dangerous  innovation  on  the  treaty- 
making  power  was  warmly  opposed  by  a  minority  in 
the  House,  and  disagreed  to  by  the  Senate ;  but,  after 
several  conferences  between  them,  the  affair  terminated 
in  a  compromise,  which  it  is  difficult  to  reconcile  with 
a  sound  construction  of  the  Constitution.  The  law 
passed  on  the  occasion  briefly  declEires  that  so  much 
of  any  Act  as  imposes  a  duty  on  tonnage,  contrary  to 


CONSTITUTIONAL  JURISPRUDENCE.  235 

the  provisions  of  the  convention  with  Great  Britain, 
should,  from  the  date  of  that  instrument^  and  during  its 
continuance,  be  of  no  force  or  effect;  thus  setting  a 
precedent  which  may  produce  future  difficulty  in  our 
national  legislation,  though  the  Judicial  tribunals  would 
probably  regard  such  a  law  as  a  work  of  supererogation, 
or  a  mere  nullity,  and,  from  its  retroactive  operation,  at 
variance  with  the  spirit  of  the  Constitution. 

Treaties  of  every  kind,  when  made  by  competent 
authority,  are  not  only  to  be  observed  with  the  most 
scrupulous  good  faith,  but  are  to  receive  a  fair  and 
liberal  interpretation.  Their  meaning  is  to  be  ascer- 
tained by  the  same  rules  of  construction  and  course  of 
reasoning  as  are  applied  to  the  interpretation  of  private 
contracts  ;  and  according  to  the  most  authoritative 
writers  of  International  Law,  if  a  treaty  should  be  in 
fact  violated  by  one  of  the  parties,  either  by  proceed- 
ings incompatible  with  its  nature,  or  by  an  intentional 
breach  of  any  of  its  articles,  it  rests  with  the  injured 
party  alone,  to  pronounce  it  broken.  The  treaty,  in 
such  cases,  is  not  absolutely  void,  but  voidable  at  the 
election  of  the  injured  party.  If  he  chooses  not  to 
come  to  a  rupture,  the  treaty  remains  obligatory.  He 
may  waive  or  remit  the  infraction,  or  demand  a  just 
satisfaction. 

But  the  violation  of  one  article  of  a  treaty  is  a  viola- 
tion of  the  whole  ;  for  all  its  articles  are  dependent  on 
each  other ;  and  the  breach  of  a  single  article  may,  at 
the  election  of  the  injured  party,  overthrow  the  whole 
treaty.  This  consequence,  however,  may  be,  and  usu- 
ally is,  prevented  by  an  express  provision  in  the  treaty 
itself,  that  if  one  article  be  broken,  the  others  shall 
nevertheless  continue  in  force;  and  in  this  case,  the 


2S6:  LECTUBES   ON 

Legislative  power  could  not  annul  the  treaty  on  the 
ground  of  the  breach.  The  nullification  of  a  treaty  by 
the  Legislature  of  one  of  the  parties,  under  the  circum- 
stances which  render  such  an  act  justifiable,  or  its 
termination  by  war,  does  not,  however,  divest  rights  of 
property  acquired  under  it.^  Nor  do  treaties  become, 
ipso  facto,  extinguished  by  war.  Those  articles  which 
stipulate  for  a  permanent  arrangement  of  territorial,  or 
other  national  rights,  are,  at  most,  suspended  during 
the  war,  and  revive  at  the  restoration  of  peace,  unless 
waived  by  the  parties,  or  new  or  repugnant  arrange- 
ments are  made  in  a  new  treaty. 

At  a  very  early  period  of  modern  history,  the  princi- 
pal European  States  made  provision,  by  treaty,  for  the 
mutual  surrender  of  fugitives  from  justice ;  such  prac- 
tice has  been  continued  to  the  present  time.  The 
Constitution  of  the  United  States  provides  that  "  a 
person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  State,  shall,  on  demand  of  the  Executive 
authority  of  the  State  from  which  he  fled,  be  delivered 
up  to  be  removed  to  the  State  having  jurisdiction  of 
the  crime.2  A  similar  provision  is  contained  in  many 
of  our  treaties  with  foreign  powers.  But,  independently 
of  any  such  stipulation,  the  most  eminent  and  ap- 
proved writers  upon  public  law  declare  that  every  State 
is  bound  to  deny  an  asylum  to  criminals,  and  upon 
application  and  due  examination  of  the  case,  to  sur- 
render the  fugitive  to  the  foreign  State  where  the  crime 
was  committed.^     A  difficulty,  in  the  absence  of  posi- 

1  8  Wheat.  402.  2  Const.  U.  S.,  Art.  IV.  Sect.  n.  2. 

3  Grotius,  Lex.  P.  &  B.  1.  2,  ch.  21 ;  Burlamaqui,  P.  4,  ch.  3  ;  Ruth- 
erf  orth's  Institutes,  P.  2,  ch.  9 ;  VatteVs  Law  of  Nations,  b.  2,  ch.  6. 


CONSTITUTIONAL   JURISPRUDENCE.  237 

tive  agreement,  arises  in  drawing  the  line  between  the 
class  of  offences  to  which  the  usage  of  nations  applies, 
and  that  in  which  it  does  not.  But  it  seems  to  be 
understood  in  practice  to  apply  only  to  crimes  of  great 
atrocity,  such  as  are  punishable  by  the  State  in  which 
the  fugitive  has  sought  refuge  ;  and  not  to  include 
political  offences.  This  principle  is  adopted  in  an  Act 
of  the  Legislature  of  New  York,  which  authorizes  the 
Governor,  in  his  discretion,  on  requisition  from  a  for- 
eign Government,  to  surrender  up  fugitives  charged 
with  murder,  forgery,  larceny,  or  other  crimes  punish- 
able by  the  laws  of  that  State  with  death,  or  imprison- 
ment in  the  State  prison,  provided  the  evidence  of 
criminality  be  sufficient  by  the  State  laws  to  detain 
the  party  for  trial  on  a  like  charge.^  Such  a  provision 
was  all  that  was  requisite,  and  all  that  the  Legislature 
could  make ;  for  the  Judicial  power  can  do  no  more 
than  cause  the  fugitive  to  be  arrested  and  detained, 
until  opportunity  be  afforded  for  his  surrender  by  the 
Supreme  Executive  power  of  the  Union.  And,  in  order 
to  give  effect  to  the  treaty  stipulations  upon  the  subject 
between  the  United  States  and  foreign  Governments, 
an  Act  was  passed  by  Congress  for  that  purpose,  pre- 
scribing the  mode  in  which  the  extradition  of  the 
accused  party  is  to  be  made.^ 

As  the  Constitution  confers  absolutely  upon  the  Gov- 

1  In  the  case  of  Holmes  and  Gennison,  14  Peters,  540,  four  of  the 
Justices  of  the  Supreme  Court  expressed  the  opinion  that  the  Gov- 
ernor of  a  State  had  no  power  to  deliver  up  to  a  foreign  Government, 
a  person  charged  with  having  committed  a  crime  in  the  territory  of 
that  Government;  but  no  judgment  was  given  in  that  case, —  the 
Court  being  equally  divided  in  opinion,  on  the  question  of  jurisdiction. 

2  Passed  August  12,  1808. 


238  LECTURES   ON 

ernment  of  the  United  States,  the  powers  of  making 
war,  and  of  making  treaties,  it  follows  that  it  possesses 
the  power  of  acquiring  territory,  either  by  conquest  or 
by  treaty .1 

The  supplementary  power  of  sending,  receiving,  and 
dismissing  Ambassadors,  and  other  public  Ministers, 
and  Consuls,  results  as  a  necessary  incident  to  the 
leading  part  in  the  treaty-making  power  assigned  to 
the  President.  'The  power  of  dismissing  a  foreign 
Minister  was  first  exercised  by  President  Washington, 
who  broke  off  all  intercourse  with  Citizen  Genet,  and 
demanded  his  recall  by  the  French  Government,  in 
consequence  of  his  insolent  assumption  of  authority  to 
commission  private  vessels  of  war,  equip  them  in  our 
ports,  and  erect  consular  tribunals,  with  admiralty  juris- 
diction within  our  territory.  The  only  instance  of  the 
kind  that  has  since  occurred,  was  that  of  the  British 
Minister,  Mr.  Francis  Jackson,  who,  in  consequence  of 
his  disrespectful  conduct,  and  the  insulting  tone  of  his 
correspondence  with  the  Government,  was  dismissed 
by  President  Madison.^ 

1  1  Peters,  542. 

2  This  gentleman  had  previously  obtained  some  notoriety  by  his 
belligerent  diplomacy  at  Copenhagen ;  and  his  conduct  on  his  extra- 
ordinary mission  to  this  country,  in  relation  to  the  attack  of  a  British 
line-of-battle  ship  upon  the  frigate  Chesapeake,  fully  vindicated  the 
nom  de  guerre  he  earned  by  a  similar  attack,  though  upon  a  much 
larger  scale,  which  he  had  promoted  upon  the  former  occasion.  It 
was  supposed  here,  that  he  had  been  selected  for  this  mission  by  Mr. 
Canning,  the  British  Secretary  for  foreign  affairs,  in  consequence  of 
his  exploit  in  the  Baltic  ;  but  a  better  motive  was  found  in  England 
for  the  choice,  in  the  private  friendship  existing  between  the  Secre- 
tary and  the  Envoy,  arising  from  the  gratitude  of  Mr.  Canning  to 
his  friend's  father,  the  B«v.  Dr.  Cyril  Jackson,  Dean  of  Christ  Church, 


CONSTITUTIONAL  JUKISPRUDENCB.  239 

A  foreign  Consul  is  a  public  agent  clothed  with 
authority  only  for  commercial  purposes.  He  is  not 
usually  considered  as  a  diplomatic  agent  of  his  sov- 
ereign, intrusted,  by  virtue  of  his  office,  with  authority 
to  represent  him  in  his  negotiations  with  foreign  States, 
or  to  vindicate  his  prerogatives.  He  cannot,  without 
the  special  authority  of  his  Government,  interpose  a 
claim  in  the  Prize  Courts,  for  the  violation  of  the  neu- 
tral territory  of  his  Sovereign.^  But  he  has  a  right,  by 
virtue  of  his  office,  to  interpose  a  claim  in  a  Court  of 
Admiralty,  for  the  restitution  of  property  belonging  to 
the  subjects  of  his  country,  without  a  special  authority 
from  those  for  whose  benefit  he  acts ;  although,  in  the 
absence  of  such  authority,  he  has  no  right  to  receive,  in 
his  natural  character,  the  proceeds  of  property  libelled, 
and  transferred  to  the  registry  of  the  Courts.^  And, 
though  allowed  to  interpose  a  claim  for  subjects  un- 
known, of  his  nation,  he  cannot  demand  actual  restitu- 
tion of  the  property,  without  proof  of  the  individual 
proprietary  interest.^ 

Notwithstanding  the  ordinary  character  of  a  Consul 
is  confined  to  commercial  agency,  it  has  been  the  prac- 
tice, both  of  our  own  Government  and  those  of  Europe, 


Oxford,  under  whose  tuition  he  had  been  placed  at  the  University. 
Be  that  as  it  may,  the  son  behaved,  in  this  country,  as  unlike  as 
possible  to  what  it  may  be  presumed  would  have  been  the  conduct 
and  manners  of  the  father,  had  he  been  in  his  son's  situation,  judging 
from  the  character  of  the  former  as  given  by  the  author  of  "  The 
Pursuits  of  Literature,"  and  by  Mr.  Ward,  in  his  novel  of  "  De 
Vere." 

I  3  Wheat,  435 ;  4  Cond.  Rep.  286. 

•2  6  Wheat.  152;  5  Cond.  Rep.  45. 

3  10  Wheat.  66  ;  6  Cond.  Rep.  30. 


240  LECTURES   ON 

particularly  with  respect  to  the  Barbary  powers,  and 
certain  Eastern  nations,  to  invest  Consuls  with  diplo- 
matic functions,  not  merely  on  special  occasions,  but 
as  permanent  duties  of  their  office,  in  those  peculiar 
situations. 

11.  The  power  to  define  and  punish  piracies  and  fel- 
onies committed  on  the  high  seas,  and  offences  against 
the  Law  of  Nations,  is  substantively  and  separately 
vested  in  Congress  ;  although,  as  to  the  former  of  these 
objects,  it  seems  unavoidably  incident  to  the  power  of 
regulating  foreign  commerce,  and,  as  to  the  latter,  to  be 
implied  from  the  authority  to  declare  war  and  make 
treaties. 

The  power  to  define,  as  well  as  punish,  seems  rather 
applicable  to  felonies,  and  offences  against  the  Law  of 
Nations,  than  to  piracies,  as  piracy  is  well  defined  by 
that  code ;  and  by  the  "  high  seas,"  is  understood  not 
only  the  ocean  out  of  sight  of  land,  but  waters  on  the 
sea-coast  beyond  the  boundary  of  low-water  mark. 

1.  Piracy,  according  to  the  most  approved  writers 
on  international  law,  consists  in  robbery,  or  a  forcible 
depredation  upon  the  high  seas  without  lawful  au- 
thority.i  Bu^  felonies,  either  on  the  ocean  or  on  waters 
on  the  coast  beyond  low-water  mark,  and  offences 
against  the  Law  of  Nations,  are  by  no  means  com- 
pletely ascertained  and  defined  by  any  code  recognized 
by  the  common  consent  of  nations  ;  so  that,  with 
respect  to  these  offences,  there  was  a  peculiar  fitness 
in  granting  to  Congress  the  power  to  define  as  well 
as  to  punish.     But  in  executing  the  power  in  regard 

1  Cicero,  in  Verres.  1  List.  113;  Bijnkershoeck,  Q.  &  P.  lib.  1  ; 
Rutherforth's  Inst.  b.  2  ;   Cro.  Eliz.  685  j  3  Woodern's  Led.  429. 


CONSTITUTIONAL  JURISPRUDENCE.  241 

to  piracy,  it  was  not  necessary  for  Congress  to  insert 
in  the  statute  a  definition  of  the  crime  in  terms ;  it 
was  enough  to  refer  for  its  definition  to  the  Law  of 
Nations,  as  it  is  there  defined  with  reasonable  certainty, 
and  sufficient  precision,  and  does  not  depend  on  the 
particular  provisions  of  any  municipal  code  either  for 
its  definition  or  its  punishment.^ 

The  Act  of  Congress  referring  to  the  Law  of  Nations 
for  a  definition  of  the  crime  of  piracy,  was  a  constitu- 
tional exercise  of  the  power  to  define,  as  well  as  punish 
it ;  as  Congress  may  define  by  using  a  term  of  known 
and  determinate  meaning,  as  well  as  by  an  express 
enumeration  of  the  particulars  included  in  that  term. 
In  law,  and  in  logic,  that  is  deemed  certain,  which, 
by  necessary  reference,  is  made  so ;  and  the  Law  of 
Nations  has  described  the  crime  of  Piracy  with  reason- 
able certainty. 

Congress  has  a  right  to  pass  laws  to  punish  pirates 
though  they  may  be  foreigners,  and  have  committed 
no  particular  offence  against  the  United  States ;  and 
in  executing  this  power,  it  has  declared,  in  conformity 
with  the  Law  of  Nations,  that  the  punishment  of 
piracy  shall  be  death.  The  Act  of  Congress,  which 
declares  certain  offences  to  be  piracy  which  are  not  so 
by  the  Law  of  Nations,  was  intended  to  punish  them 
as  offences  against  the  United  States,  and  not  as 
offences  against  the  human  race  ;2  and  such  an  offence, 
committed  by  a  person  not  a  citizen  of  the  United 
States,  on  board  of  a  vessel  belonging  exclusively  to 
subjects  of  a  foreign   State,  is  not  piracy  under  the 

1  Act  of  March  3,  1819  ;  5  Wheat.  153  ;  Ibid.  163,  note. 
3  Act  of  May  15,  1820 ;  3;  Wheat.  610. 

21 


242  LECTURES   ON 

statute,  nor  punishable  in  the  Federal  Courts.  The 
offence,  in  such  cases,  must  be  left  to  be  punished  by 
the  nation  under  whose  flag  the  vessel  sails,  and  whose 
particular  jurisdiction  extends  to  aU  on  board ;  for  it 
is  a  .clear  and  settled  principle,  that  the  jurisdiction  of 
every  nation  extends  to  its  own  citizens,  on  board  of 
its  own  public  and  private  vessels,  at  sea.^  But  murder 
and  robbery  committed  on  the  high  seas  by  persons 
on  board  of  a  vessel  not  at  the  time  belonging  to  any 
foreign  power,  but  in  possession  of  a  crew  acting  in 
defiance  of  all  law,  and  acknowledging  obedience  to 
no  Government,  is  within  the  Act  of  Congress,  and 
punishable  in  the  Courts  of  the  United  States ;  for 
although  the  statute  does  not  apply  to  offences  com- 
mitted against  the  particular  sovereignty  of  a  foreign 
power,  and  on  board  of  a  vessel  belonging  at  the  time, 
in  fact  as  well  as  of  right,  to  a  subject  of  a  foreign 
State,  and  in  virtue  of  such  propriety  subject  to  his 
control,  yet  it  does  extend  to  all  offences  committed 
against  all  nations,  by  persons  who,  by  common  con- 
sent, are  amenable  to  the  laws  of  aU  nations.^ 

In  pursuance  of  this  principle,  the  moment  a  vessel 
assumes  a  piratical  character,  she  loses  all  claim  to 
national  character,  and  the  crew,  whether  citizens  or 
foreigners,  are  equally  punishable  under  the  statute, 
for  acts  which  it  declares  to  be  piracy.  The  laws  of 
the  United  States  declare  those  acts  piracy  in  one  of 
their  own  citizens,  which  would  be  merely  belligerent 
acts  if  committed  on  a  foreigner ;  and  a  citizen  of  the 
United  States  who  offends  against  the  Government,  or 

1  RtUherf.  Inst.  b.  2,  ch.  9. 

2  5  Wheat.  144  ;  4  Cond.  Rep.  619  ;  Laws  U.  S.  1820,  §  3. 


'constitutional  jueisprudence.  243 

his  fellow-citizens,  under  color  of  a  foreign  commission, 
is  punishable  in  the  same  manner  as  if  he  had  no 
commission.  The  acts  of  an  alien,  under  the  sanction 
of  a  national  commission  may  be  hostile,  and  his 
Government  may  be  responsible  for  them,  but  they  are 
not  regarded  as  piratical ;  and  this  rule  extends  to  the 
Barbary  powers,  who  are  now  regarded,  by  the  Law 
of  Nations,  as  lawful  powers,  and  not  as  they  formerly 
deserved  to  be,  pirates. 

2.  Felony^  when  committed  on  the  high  seas,  amounts 
in  effect  to  piracy,  and  has,  to  a  considerable  extent, 
been  so  declared  by  Congress,  who,  in  pursuance  of 
the  authority  vested  in  them  by  the  Constitution,  have 
enacted  that  any  person,  on  the  high  seas,  or  in  any 
open  roadstead  or  bay  where  the  sea  ebbs  and  flows, 
committing  the  crime  of  robbery  in  and  upon  any 
vessel,  or  its  crew  or  lading,  shall  be  adjudged  a  pirate  ; 
and  further,  that  "if  any  person  concerned  in  any 
piratical  cruise  or  enterprise,  or  being  of  the  crew  or 
ship's  company  of  any  piratical  ship  or  vessel,  shall 
land  and  commit  robbery  on  shore,  such  person  shall- 
be  adjudged  a  pirate ; "  in  which  last  respect,  the 
statute  seems  to  be  merely  declaratory  of  the  Law  of 
Nations.^ 

The  power  to  define  and  punish  piracy  and  felonies 
on  the  high  seas  is  exclusive  in  its  nature  ;  but  it  has 
been  doubted  whether  the  power  to  punish  other 
offences  against  international  law  ought  not  to  be  con- 
sidered as  exclusively  vested  in  Congress,  on  the  ground 
that  the  Law  of  Nations  forms  a  part  of  the  Common 
Law  of  every  State  in  the  Union,  and  that  violations 

1  Douglass,  616. 


244  LECTURES   ON 

of  it  may  be  committed  on  land  as  well  as  at  sea. 
The  jurisdiction  of  the  several  States  is  certainly  super- 
seded in  regard  to  those  offences  against  international 
law  which  are  committed  at  sea  ;  but  it  does  not  seem 
to  follow,  as  a  necessary  consequence,  that  it  is  also 
superseded  in  regard  to  those  committed  on  shore. 
These  offences  are  of  various  kinds,  and  the  power  to 
define  and  punish  them  is,  with  great  propriety,  given 
to  Congress,  as  it  prevents  difficulties  which  might  arise 
from  the  doubt  of  a  concurrent  jurisdiction  of  them  by 
the  States ;  and,  so  far  as  they  have  been  defined  by  Con- 
gress, they  may  be  said  to  arise  under  the  Constitution 
and  laws  of  the  United  States,  and  to  be  finally,  if  not 
exclusively,  cognizable  under  the  Federal  authority. 

But  there  are  some  such  offences  not  enumerated  in 
the  Acts  of  Congress;  and  if  the  doctrine  be  sound, 
that  the  criminal  jurisdiction  of  the  Union  is  confined 
to  cases  expressly  provided  for  by  Congress,  either  those 
violations  of  international  law,  of  which  the  punish- 
ment remains  unprovided  for  by  Congress,  must  go 
unpunished,  or  the  State  Court  must  entertain  juris- 
diction of  them.  The  United  States  being  alone  re- 
sponsible to  foreign  nations  for  all  that  affects  their 
mutual  intercourse,  it  rests  with  the  National  Govern- 
ment to  declare  what  shall  constitute  offences  against 
the  law  regulating  that  intercourse,  and  to  prescribe 
suitable  punishments  for  their  commission.  But  if 
cases  arise  for  which  no  provision  has  been  made  by 
Congress,  both  the  National  and  State  Governments, 
within  the  spheres  of  their  respective  jurisdictions,  are 
thrown  upon  those  general  principles,  which,  being 
enforced  by  other  nations,  those  nations  have  a  right 
to  require  to  be  applied  in  their  favor. 


CONSTITUTIONAL  JURISPRUDENCE.  245 

The  offences  falling  more  immediately  under  the 
cognizance  of  the  law  of  nations  are,  besides  piracy, 
violations  of  safe-conducts,  and  infringements  of  the 
rights  of  Ambassadors  and  other  public  Ministers. 

3.  A  safe-conduct  or  passport  contains  a  pledge  of 
the  public  faith  that  it  shall  be  duly  respected,  and  the 
observance  of  this  duty  is  essential  to  the  character  of 
the  Government  which  grants  it.  In  furtherance  of  the 
general  sanction  of  public  law.  Congress  has  provided 
that  persons  violating  a  safe-conduct  or  passport  granted 
by  the  Government  of  the  United  States,  shall,  on  con- 
viction, be  subjected  to  fine  and  imprison ment.^  The 
same  punishment  is  inflicted  upon  persons  offering 
violence  to  Ambassadors  or  other  public  Ministers,  or 
being  concerned  in  prosecuting  or  arresting  them  ;  ^  and 
the  process  whereby  their  persons,  or  those  of  their 
domestics,  may  be  imprisoned,  or  their  goods  seized 
or  attached,  is  declared  void.  The  policy  of  these  laws 
regards  such  proceedings  against  foreign  Ministers  as 
highly  injurious  to  a  free  and  liberal  communication 
between  different  Governments,  and  mischievous  in 
their  consequences  to  any  nation.  They  tend,  most 
certainly,  to  provoke  the  resentment  of  the  Sovereign 
whom  the  Envoy  represents,  and  to  bring  upon  the 
country  the  calamity  of  war  ;  and,  therefore,  every 
civilized  nation  has  an  equal  interest  in  upholding  the 
privileges  of  their  representatives  abroad,  and  punishing 
the  breaches  of  them  by  its  own  citizens. 

III.  The  power  of  regulating  foreign  commerce  is 
intimately  connected  with  the  power  of  concluding 
treaties,  especially  those  of  commerce  and  navigation, 

1  Act  of  April  80,  1790,  §  27.  2  Jhid.  §§  25,  26. 

21* 


246  LECTUKES   ON 

and  is,  with  equal  propriety,  submitted  to  the  National 
Government. 

The  oppressed  and  degraded  state  of  commerce  be- 
fore the  adoption  of  the  Federal  Constitution,  and  the 
injury  it  sustained  from  the  impotent  and  disconnected 
efforts  of  the  several  States  to  counteract  the  restric- 
tions imposed  on  it  by  foreign  nations  with  a  view  to 
their  own  interests,  contributed  more,  perhaps,  to  the 
introduction  of  our  present  system  of  Government, 
than  any  other  of  the  numerous  evils  proceeding  from 
the  feebleness  of  the  Confederation.  The  former  Con- 
gress, indeed,  possessed  the  power  of  making  commer- 
cial treaties,  but  its  inability  to  enforce  them  rendered 
that  power,  in  a  great  degree,  useless ;  and  all  who 
were  capable  of  estimating  the  influence  of  commerce 
on  national  prosperity,  perceived  the  necessity  of  giving 
the  control  over  this  important  subject  to  the  General 
Government.  It  is  not,  therefore,  matter  of  surprise, 
that  the  grant  should  be  as  extensive  as  the  mischiefs 
that  had  been  experienced ;  and  it  is  equally  apparent 
that  to  construe  the  grant  so  as  to  impair  its  efficacy, 
would  tend  to  defeat  an  object  in  the  attainment  of 
which  the  American  people  felt  that  deep  interest 
which  arose  from  a  strong  and  just  conviction  that  the 
whole  commerce  of  the  nation  should  be  regulated  by 
Congress.  From  its  very  nature,  this  power  must  be 
considered  as  exclusive ;  for  if  the  several  States  had 
retained  the  right  of  regulating  their  own  commerce, 
each  of  them,  as  experience  had  indicated,  would 
probably  have  pursued  a  different  system ;  mutual  jeal- 
ousies, rivalries,  restrictions,  and  prohibitions  would 
have  ensued,  which  a  common  superior  alone  could 
prevent  or  cure,  and,  at  the  same  time,  command  that 


CONSTITUTIONAL  JURISPRUDENCE.  247 

confidence  of  foreign   nations,  which    is   necessary  to 
the  negotiation  of  commercial  treaties. 

But  the  nature  and  extent  of  this  power  has  been 
fully  and  ably  discussed,  and  satisfactorily  settled  by 
the  Supreme  Court  of  the  United  States,  especially  in 
a  case  which  drew  in  question,  and  overruled  the  con- 
stitutionality of  the  laws  of  New  York,  vesting  in 
certain  individuals  the  exclusive  right  of  steam  navi- 
gation upon  its  waters.*  On  that  occasion,  it  was 
held,  that  the  general  power  to  regulate  commerce  was 
not  restricted  merely  to  the  buying  and  selling  or  ex- 
changing commodities,  but  included  the  navigation  of 
vessels,  and  commercial  intercourse  in  all  its  branches, 
and  extended  to  all  vessels,  by  whatsoever  force  pro- 
pelled, and  to  whatever  purpose  appropriated.  It  was 
observed  by  the  venerable  and  lamented  Chief  Justice 
Marshall,  in  delivering  the  opinion  of  the  Court,  that, 
if  commerce  did  not  include  navigation,  the  Govern- 
ment of  the  Union  had  no  direct  power  over  that 
subject,  and  could  make  no  law  prescribing  the  requi- 
sites to  constitute  American  vessels,  or  require  them 
to  be  navigated  by  American  seamen ;  yet  this  power 
had  been  exercised  from  the  beginning  of  the  Govern- 
ment, with  the  universal  consent  of  the  States  and  of 
the  Union,  and  had  been  as  universally  understood  to 
be  a  commercial  regulation.  The  word  commerce,  in- 
deed, must  have  been  understood  to  comprehend  navi- 
gation when  the  Constitution  was  adopted,  as  the  power 
over  both  was  one  of  the  primary  objects  for  which  the 

1  19  Wheat.  446.  Having  been  consulted  by  the  late  Mr.  Gibbons 
before  he  determined  to  try  the  validity  of  this  grant,  it  may  not  be 
improper  to  subjoin  the  opinion  given  on  that  occasion.  Vide  Ap- 
pendix F. 


248  LECTURES   ON 

Constitution  was  formed ;  and  in  that  comprehensive 
sense  is  the  term  used  in  the  Constitution.  It  is  a 
rule  of  construction  universally  acknowledged,  that  the 
exceptions  from  a  power  mark  its  extent ;  for  it  would 
be  absurd  as  well  as  useless  to  except  from  a  power 
granted,  that  which  the  words  of  the  grant  could  never 
comprehend.  If,  therefore,  the  Constitution  contains 
plain  exceptions  from  the  power  over  navigation  — 
plain  inhibitions  against  the  exercise  of  that  power  in  a 
particular  way  —  it  is  evident  that  the  power  to  which 
they  apply  must  have  been  intended  to  have  been 
granted.^ 

The  power  to  regulate  commerce,  thus  understood,  is 
held  to  extend  to  every  species  of  commercial  inter- 
course between  the  United  States  and  foreign  nations, 
and  among  the  States ;  and  although  the  expressions 
relative  to  the  States  were  not  intended  to  comprehend 
that  commerce  which  is  completely  internal,  and  carried 
on  between  individuals  in  a  State,  or  different  parts 
of  the  same  State,  without  extending  to,  or  affecting 
other  States,  yet,  in  regulating  commerce  with  foreign 
nations,  the  power  of  Congress  does  not  stop  at  the 
jurisdictional  lines  of  the  several  States.^  It  would  be 
a  very  useless  power  if  it  could  not  pass  those  limits. 

1  The  Acts  of  Congress  require  that  every  vessel  shall  be  registered 
by  the  Collector  of  the  District  in  which  is  the  port  nearest  to  the 
place  where  the  owner  or  owners  reside.  The  name  of  this  port 
must  be  painted  on  her  stern  in  large  letters ;  and  every  bill  of  sale 
of  her  must  be  recorded  in  the  office  where  she  is  registered.  1 7 
Howard,  596. 

2  But  under  thb  power,  Congress  cannot  interfere  with  the  ferries 
of  a  State,  except  so  far  as  they  are  used  for  carrying  on  the  coasting- 
trade  ;  nor  with  navigation  on  canals  constructed  by  a  State,  or  upon 
inland  lakes  and  rivers.     3  Cowen,  713. 


CONSTITUTIONAL  JURISPRUDENCE.  249 

The  commerce  of  the  United  States  with  foreign  na- 
tions is  the  commerce  of  the  whole  Union,  and  every 
district  has  a  right  to  participate  in  it.  The  deep 
streams  which  penetrate  our  country  in  every  direction, 
and  pass  through  the  interior  of  almost  every  State  in 
the  Union,  furnish  the  means  of  exercising  this  right. 
If  Congress  have  the  power  to  regulate,  that  power 
must  be  exercised  wherever  the  subject  exists.  If  it 
exist  within  the  States  —  if  a  foreign  voyage  may  com- 
mence or  terminate  at  a  port  within  a  State  —  then  the 
power  of  Congress  may  be  exercised  within  a  State. 

The  power  to  prescribe  the  rule  by  which  commerce 
is  to  be  governed,  like  all  other  powers  vested  in  Con- 
gress, is  complete  in  itself,  and  may  be  exercised  to  its 
utmost  extent,  without  any  limitations  but  such  as  are 
prescribed  in  the  Constitution.  The  restrictions  on  the 
powers  of  Congress  are  there  plainly  expressed,  and  not 
one  of  them  affects  the  power  in  question.  If,  then,  as 
has  always  been  understood,  the  sovereignty  of  Con- 
gress, though  limited  to  specific  objects,  be,  nevertheless, 
plenary  as  to  those  objects,  the  power  over  commerce 
with  foreign  nations,  and  among  the  several  States,  is 
as  absolutely  vested  in  the  Government  of  the  Union, 
as  it  would  be  in  the  Government  of  any  single  State, 
if  the  Union  did  not  exist,  and  the  State  Constitution 
had  contained  the  same  restrictions  on  the  exercise  of 
the  Legislative  power  as  are  found  in  the  Constitution 
of  the  United  States.  The  wisdom  and  the  discretion 
of  Congress  ;  the  identity  of  its  members  with  the 
people ;  and  their  dependence  on  their  constituents,  are 
in  this  instance,  as  in  that  of  declaring  war,  and  many 
others,  the  sole  restraints  upon  which  the  community 
have  relied  to  secure  them  from  the  abuse  of  the  power 


250  LECTURES   ON 

they  have  granted ;  and  such  are  the  securities  upon 
which  the  people  must  often,  of  necessity,  rely  in  all 
representative  Governments. 

From  these  considerations,  the  power  of  Congress 
was  held  to  comprehend  navigation  within  the  limits 
of  every  State  in  the  Union,  so  far  as  that  navigation 
may  be  in  any  manner  connected  with  "  commerce 
with  foreign  nations,  or  among  the  several  States,  or 
with  the  Indian  tribes ; "  for  the  power  of  controlling 
navigation  is  incident,  as  we  have  seen,  to  the  power 
to  regulate  commerce,  and,  consequently,  the  power  of 
Congress  over  vessels  employed  in  navigation  is  coex- 
tensive with  that  expressly  vested  in  it  over  their 
cargoes.* 

This  power  to  regulate  commerce,  including  thus  the 
regulation  of  navigation,  as  not  confined  to  acts  done 
on  the  water.  It  extends  to  acts  done  on  land  which 
interfere  with,  obstruct,  or  prevent  commerce  or  naviga- 
tion ;  and  any  offence  of  this  character,  though  com- 
mitted on  land,  may  be  punished  by  Congress,  under 
its  general  authority  to  make  all  laws  necessary  and 
proper  to  execute  its  expressly-delegated  powers.  A 
larceny,  therefore,  of  goods  belonging  to  a  ship  in 
distress,  committed  on  a  beach  above  high-water  mark, 
is  held  to  be  punishable  in  the  Courts  of  the  United 
States.^ 

Although  this  extensive  power,  like  many  other  of 
the  powers  formerly  exercised  by  the  several  States,  is 
now  transferred  to  the  Government  of  the  Union,  and 
no  part  of  it  thus  exclusively  vested  in  Congress,  can 
be  exercised  by  a  State,  yet  the  State  Governments 

1  9  Wheal.  1.  85  Howard,  504. 


CONSTITUTIONAL  JURISPRUDENCE.  251 

constitute  an  important  part  of  our  system,  and  have 
retained  a  concurrent  power  of  legislation  over  many 
subjects  of  Federal  jurisdiction.  The  power  of  taxa- 
tion, for  instance,  is  indispensable  to  their  existence, 
and  is  a  power  which  in  its  own  nature  is  capable  of 
residing  in,  and  of  being  exercised  by,  different  authori- 
ties at  the  same  time.  But  the  power  of  Congress  to 
lay  and  collect  taxes  and  duties  for  the  purposes  of  the 
Union,  does  not,  as  we  have  seen,  necessarily  interfere 
with  the  power  of  the  States  to  impose  taxes  for  State 
objects  ;  nor  is  the  exercise  of  that  power  by  the  States 
an  exercise  of  any  portion  of  the  power  granted  to  the 
United  States.  In  imposing  taxes  for  State  purposes, 
the  State  Legislatures  are  not  exercising  a  power  vested 
in  them  even  concurrently  with  Congress  ;  for  Congress 
is  not  empowered  to  levy  taxes  for  objects  within  the 
exclusive  province  of  the  States.  Each  Government, 
therefore,  when  it  respectively  exercises  its  proper  power 
of  taxation,  does  not  exercise  the  power  of  the  other. 
But  when  a  State  proceeds  to  regulate  commerce  with 
foreign  nations,  or  among  the  several  States,  it  exercises 
the  identical  power  which  is  granted  to  the  Union,  and 
does  the  very  thing  that  Congress  is  authorized  to  do. 
The  sole  question,  then,  is  whether  the  States  can 
exercise  the  power  of  regulating  commerce  concurrently 
with  the  United  States. 

It  was  insisted,  in  the  case  referred  to,  that  the  States 
possessed  such  concurrent  power,  and  the  party  main- 
taining the  proposition  relied  on  the  restriction  in  the 
Federal  Constitution,  which  prohibits  the  States  from 
laying  duties  on  imports  or  exports.  It  was  alleged, 
very  truly,  that  limitations  of  a  power  furnish  a  strong 
argument  in  favor  of  its  existence,  and  that  the  pro- 


252  LECTURES   ON 

hibition  in  this  case  proved  that  the  power  to  which 
it  related  might  have  been  exercised  had  it  not  been 
expressly  forbidden ;  and  hence  it  was  inferred  that 
any  commercial  regulation,  not  expressly  prohibited,  to 
which  the  power  of  the  State  was  originally  competent, 
might  still  be  made  by  its  Legislature. 

It  was  admitted,  indeed,  on  the  other  hand,  that  the 
restriction  in  question  proved  that  the  States  might 
have  imposed  duties  on  imports  and  exports,  had  they 
not  been  expressly  prohibited  ;  but  it  was  denied  that  it 
followed,  as  a  consequence  from  that  concession,  that  a 
State  may  regulate  commerce.  The  levying  of  duties 
on  imports  and  exports  was  held  to  be  a  branch  of  the 
taxing  power,  and  entirely  distinct  from  the  power  to 
regulate  commerce.  The  latter  power  is  enumerated 
in  the  Constitution  subsequently  to  the  former,  and 
each  is  substantively  and  independently  conferred  on 
Congress.  The  power  of  imposing  duties  on  imports 
"is  classed  with  the  power  of  levying  taxes ;  but  the 
power  of  levying  taxes  conferred  on  Congress,  although 
it  abridges  the  subjects  of  State  taxation,  can  never 
be  considered  as  abridging  the  right  of  the  States  rela- 
tive to  taxation  itself;  and  they  might,  consequently, 
have  exercised  it  by  levying  duties  on  imports  and  ex- 
ports, had  not  the  Constitution  forbidden  them.  This 
prohibition,  then,  is  an  exception  from  the  acknowledged 
power  of  the  States  to  levy  taxes,  and  not  from  the 
questionable  power  to  regulate  commerce.  So,  also, 
the  exception  in  the  Constitution,  with  regard  to  duties 
on  tonnage,  is  considered  as  a  restriction  on  the  power 
of  taxation,  not  on  that  to  regulate  commerce  ;  and, 
like  the  former  prohibition,  presupposes  the  existence 
of  that  which  it  restrains,  and  not  of  that  which  it  does 
not  purport  to  restrain. 


CONSTITUTIONAL  JURISPRUDENCE.  253 

Neither  are  the  State  inspection  laws  regarded  as 
commercial  regulations,  although  they  may  have  a 
remote  and  important  influence  on  commerce,  and  are 
certainly  recognized  in  the  Constitution  as  proceeding 
from  the  exercise  of  a  power  remaining  in  the  States. 
But  these,  together  with  quarantine  regulations,  and 
health  laws  of  every  description,  a^  well  as  laws  regu- 
lating the  internal  commerce  of  a  State,  and  those 
which  relate  to  canals,  turnpike  roads,  and  ferries,  are 
component  parts  of  that  immense  mass  of  legislation 
which  embraces  every  thing  within  the  territory  of  a 
State  not  surrendered  to  the  General  Government,  and 
which,  being  of  a  local  character,  can  be  more  advan- 
tageously regulated  by  the  States  themselves.  No 
direct  general  power  being  given  over  these  subjects 
to  Congress,  they  consequently  remain  subject  to  State 
legislation ;  and  if  the  Legislative  power  of  the  Union 
reaches  them  at  all,  it  is  for  national  purposes,  and 
must  then  be  either  where  the  power  is  expressly  given 
for  a  special  purpose,  or  where  it  is  clearly  incidental 
to  some  power  expressly  given  to  the  National  Govern- 
ment. A  State  has  the  same  undeniable  and  unlimited 
jurisdiction  over  all  persons  and  things  within  its  terri- 
torial limits,  as  any  foreign  nation,  when  that  jurisdic- 
tion is  not  surrendered  or  restrained  by  the  Federal 
Constitution.^  The  laws  of  the  United  States  regu- 
lating the  transportation  of  passengers  in  vessels  arriv- 
ing from   foreign   ports,  are   obviously  regulations   of 

1  The  soil  under  the  navigable  waters  of  East  New  Jersey  belongs 
to  the  State,  and  not  to  the  riparian  proprietors.  The  Supreme 
Court  so  decided  in  16  Peters,  367  ;  and  the  principle  was  held  to 
cover  a  case  where  land  has  been  reclaimed  from  the  water  under 
an  Act  of  the  State  Legislature.     15  Hoioard,  426. 

22 


254  LECTURES   ON 

commerce,  as  they  only  affect,  through  the  power  over 
navigation,  passengers  on  their  voyage,  and  until  they 
have  landed  ;  after  that,  and  when  they  have  ceased  to 
be  passengers,  the  Acts  of  Congress,  applying  to  them 
only  as  such,  and  as  such  only  professing  to  legislate 
in  regard  to  them,  have  then  performed  their  office, 
and  can  with  no  propriety  of  language  be  said  to  come 
into  conflict  with  the  laws  of  a  State  requiring  the 
master  of  every  vessel  arriving  therein  from  abroad  to 
make  a  report  in  writing  of  the  names,  ages,  and  last 
legal  settlement  of  his  passengers ;  for  such  law  does 
not  assume  to  regulate  commerce ;  ^  its  operation  begins 
only  where  the  laws  of  Congress  end,  and  is  not  even 
on  the  same  subject  ;  for  although  the  persons  on 
whom  it  operates  are  the  same,  yet,  having  ceased  to 
be  passengers,  they  no  longer  stand  in  the  only  relation 
in  which  the  laws  of  Congress  either  professed  or 
intended  to  act  upon  them. 

The  laws  enacted  in  some  of  the  States,  prohibiting 
or  regulating  the  sale  of  intoxicating  liquors  within 
their  limits,  are  held  not  to  interfere  with  the  trade  in 
ardent  spirits  while  the  article  remains  a  part  of  foreign 
commerce,  and  is  in  the  hands  of  the  importer  for  sale, 
in  the  cask  or  vessel  in  which  the  laws  of  Congress 
authorize  it  to  be  imported.  The  State  laws  in  ques- 
tion act  altogether  upon  the  retail  or  domestic  traffic 
within  their  respective  borders, —  upon  the  article  after 
it  has  passed  the  line  of  foreign  commerce,  and  become 
a  part  of  the  general  mass  of  property  in  the  State. 
Such  laws  may  discourage  imports  by  diminishing  the 
price  which  ardent  spirits  would  bring ;  but  no  State  is 

1  11  Peters,  103. 


CONSTITUTIONAL  JURISPRUDENCE.  265 

bound  to  furnish  a  market  for  any  article  of  merchan- 
dise which  Congress  authorizes  to  be  imported,  or  to 
abstain  from  enacting  a  law  which  it  may  deem  neces- 
sary to  guard  the  health  or  morals  of  its  citizens, — 
notwithstanding  such  law  may  discourage  importation, 
or  diminish  the  profits  of  the  importer,  or  lessen  the 
revenue  of  the  General  Government.^ 

It  is  obvious,  therefore,  that  the  Government  of  the 
Union,  in  the  exercise  of  its  express  powers,  may  use 
means  which  may  also  be  employed  by  a  State  in  the 
exercise  of  its  acknowledged  powers.  If  Congress,  for 
instance,  license  vessels  to  sail  from  one  port  to  another 
in  the  same  State,  the  act  is  supposed  to  be  necessarily 
incidental  to  the  power  expressly  granted  to  regulate 
commerce  with  foreign  nations  and  among  the  States, 
and  implies  no  claim  of  a  direct  power  to  regulate  the 
purely  internal  commerce  of  a  State,  or  to  act  directly 
on  its  system  of  domestic  police.  So,  if  a  State,  in 
passing  laws  on  subjects  acknowledged  to  be  within 
its  control,  and,  with  a  view  to  those  subjects,  adopt  a 
measure  of  the  same  character  with  one  which  Con- 
gress may  adopt,  the  State  does  not  derive  its  authority 
from  the  residuum  which  it  retains  of  the  particular 
power  granted  to  the  Union,  but  from  some  other  power 
which  remains  with  the  State,  and  may  be  executed  by 
the  same  means  used  for  the  execution  of  the  power  by 
Congress.  All  experience  shows  that  the  same  meas- 
ure or  measures,  scarcely  distinguishable  from  each 
other,  may  flow  from  distinct  powers ;  but  this  does 
not  prove  that  the  powers  are  identical ;  and  although 
the  means  used  in  their  execution  may  sometimes  ap- 

1  5  Howard,  504. 


256  LECTURES   ON 

proach  each  other  so  nearly  as  to  be  confounded,  there 
are  other  situations  in  which  they  are  sufficiently  dis- 
tinct to  establish  their  individuality. 

In  our  complex  system,  presenting  the  rare  and  diffi- 
cult scheme  of  a  Federal  Government,  supreme  over 
the  whole  of  its  members,  but  possessing  only  certain 
enumerated  powers,  and  of  numerous  State  Govern- 
ments, retaining  and  exercising  all  power  not  delegated 
to  the  Federal  head,  contests  respecting  power  must 
necessarily  arise.  Measures  taken  respectively  by  the 
Governments  of  the  Union  and  of  the  States,  in  the 
execution  of  their  acknowledged  powers,  must  often  be 
of  the  same  description,  and  may  sometimes  interfere. 
But  this  does  not  prove  that  the  one  is,  in  fact,  exercis- 
ing, or  has  a  right  to  exercise,  the  powers  of  the  other. 
The  States  may  sometimes  enact  laws,  the  validity  of 
which  may  depend  on  their  not  interfering  with,  or 
being  contrary  to,  an  Act  of  Congress,  passed  in  pursu- 
ance of  its  constitutional  powers  ;  in  all  such  cases,  the 
inquiry  is,  whether  the  State  law  has,  in  its  application, 
come  into  collision  with  the  Act  of  Congress ;  and 
should  an  actual  collision  be  found  to  have  taken  place, 
it  would  be  immaterial  whether  the  former  were  passed 
by  the  State  in  virtue  of  its  concurrent  power  with 
Congress,  or  in  virtue  of  a  distinct  and  independent 
power  relating  to  a  different  subject ;  in  either  case,  the 
Act  of  the  State  Legislature,  and  the  right  or  privilege 
conferred  by  it,  must  yield  to  rights  and  privileges 
derived  from  the  Act  of  Congress.  It  was  therefore 
held,  in  the  case  referred  to,  that  a  license  under  the 
Acts  of  Congress,  for  regulating  the  coasting  trade,  is 
not  merely  intended  to  confer  a  national  character  on 
vessels  engaging  in  it,  but  gives  to  them  permission  to 


CONSTITUTIONAL  JUHISPRUDENCE.  257 

carry  on  that  trade ;  and  as  the  power  of  Congress  to 
regulate  commerce  extends  to  navigation  carried  on  in 
vessels  exclusively  employed  in  the  transportation  of 
passengers,  whether  those  vessels  be  propelled  by  steam, 
or  by  the  instrumentality  of  wind  and  sails — on  waters 
whoUy  within  a  State,  but  which  may  be  approached 
by  the  ocean — a  case  of  actual  collision  was  presented 
between  the  exclusive  privilege  conferred  by  the  State 
law  on  the  one  side,  and  the  authority  to  carry  on  the 
coasting  trade  derived,  on  the  other,  from  the  Act  of 
Congress ;  and  in  so  far  as  this  interference  extended, 
the  State  law  was  declared  to  be  void,  as  repugnant  to 
the  Federal  Constitution. 

In  a  subsequent  case,  it  was  laid  down  by  the  same 
authority,  that,  as  the  power  to  regulate  commerce  thus 
reaches  the  interior  of  a  State,  and  may  there  be  exer- 
cised, it  must  be  capable  of  authorizing  the  sale  of 
those  articles  which  it  introduces,  because  its  efficacy 
would  not  be  complete  if  it  ceased  to  operate  at  the 
point  where  the  continuance  of  its  operation  is  indis- 
pensable to  its  value.  The  power  to  allow  importation 
would,  indeed,  be  nugatory,  if  unaccompanied  with  the 
power  to  authorize  the  sale  of  the  thing  imported ;  for 
sale  is  the  object  of  importation,  and  an  essential 
ingredient  of  that  commercial  intercourse  of  which 
importation  constitutes  a  part,  and  is  as  indispensable 
to  the  existence  of  that  intercourse  as  importation  itself. 
The  right  of  sale,  as  well  as  the  right  to  import,  was, 
therefore,  considered  as  involved  in  the  power  to  regu- 
late commerce  ;  and  it  was  accordingly  held  that  Con- 
gress had  a  right,  not  only  to  authorize  importation, 
but  to  authorize  the  importer  to  sell.  An  Act  of  the 
Legislature  of  Maryland,  requiring  all  wholesale  im- 
22* 


258  LECTURES   ON 

porters  and  sellers  of  foreign  goods  to  obtain  a  license 
from  that  State,  and  to  pay  a  sum  of  money  on  re- 
ceiving it,  was  consequently  adjudged  to  be  void,  as 
repugnant  not  only  to  that  provision  of  the  Federal 
Constitution  which  declares  that  "  no  State  shall,  with- 
out the  consent  of  Congress,  lay  any  impost  or  duty 
on  imports  or  exports,"  but  to  that  also  which  invests 
Congress  with  power  "to  regulate  commerce."^  The 
principles  laid  down  on  this  occasion  apply  equally  to 
importations  from  another  State,  as,  in  both  cases,  the 
powers  remaining  in  the  States,  when  so  exercised  as 
to  come  in  conflict  with  those  vested  in  Congress,  that 
which  is  not  supreme  must  yield  to  that  which  is.  This 
great  universal  truth  is  inseparable  from  the  nature  of 
things  ;  and  the  Constitution  has  applied  it  to  the  often 
interfering  powers  of  the  General  and  State  Govern- 
ments, as  a  vital  principle  of  perpetual  operation,  so 
long  as  the  power  to  regulate  commerce  is  admitted  to 
be  exclusive.  It  has  been  so  considered  by  every  de- 
partment of  the  Government,  and  by  all  classes  of 
citizens  in  every  quarter  of  the  Union,  ever  since  the 
adoption  of  the  Federal  Constitution.  It  was,  indeed, 
to  effect  this  transfer  of  power  that  the  Constitution 
was  established.  This  was  the  primary  and  avowed 
motive  for  assembling  the  Convention  of  1787.  The 
exclusive  grant  of  this  power  to  the  National  Govern- 

1  9  Wheat.  1.  But  the  Pennsylvania  Statutes,  imposing  a  duty  on 
retailers  of  foreign  merchandise,  have  been  held  by  the  Supreme 
Court  of  that  State,  not  to  be  repugnant  to  the  Constitution  of  the 
United  States.  1  Serg.  §•  Raw.  AOa.  See  also  2  3ic  Corrf,  495;  14 
Wend.  87  ;  1  Dev.  §•  Bar.  19.  So  also  of  a  tax  imposed  on  all  per- 
sons trading  in  foreign  and  domestic  goods,  within  the  State,  whether 
the  capital  employed  be  owned  there  or  elsewhere.    4  Ham.  107. 


CONSTITUTIONAL  JXJRISPRUDENCE.  259 

ment  was  essential  to  impart  to  our  shipping  engaged 
in  foreign  commerce  its  nationality  and  protection  ;  and 
the  surrender  of  this  power  became,  in  several  of  the 
States,  the  most  formidable  obstacle  to  the  ratification 
of  the  new  Constitution.  The  State  of  New  York, 
where  the  opposition  was  the  strongest,  possessed  the 
finest  harbor  on  the  coast  y  the  fertility  of  its  yet  uncul- 
tivated western  territory  was  already  known ;  the  rapid 
increase  of  its  population  had  been  confidently  antici- 
pated ;  the  tide  of  immigration  had  begun  to  flow  in 
upon  it ;  and  the  consequent  accession  of  wealth  and 
power  afforded  the  most  seductive  objects  to  gratify 
the  ambition  of  its  statesmen  and  politicians.  These 
causes,  indeed,  combined  to  delay  and  render  doubtful 
its  adoption  of  the  Federal  Constitution,  until  it  was 
rendered  certain,  by  the  assent  of  nine  of  the  thirteen 
members  of  the  Confederation,  that  the  new  Govern- 
ment would  go  into  immediate  operation  among  the 
States  which  had  already  acceded  to  it  ;  and  that  the 
recusant  States  would  thereby  be  deprived  of  the  bene- 
fits both  of  the  former  Confederacy  and  of  the  new 
compact  by  which  it  was  superseded. 

A  controversy,  however,  has  of  late  years  arisen,  and 
still  exists,  between  the  supporters  of  the  National 
jurisdiction  and  the  advocates  of  "  State  Rights,"  with 
regard  to  the  constitutionality  of  laws  for  the  improve- 
ment of  the  Rivers  and  Harbors  of  the  United  States, 
under  the  power  vested  in  Congress  "  to  regulate  com- 
merce," or  any  other  power  granted  to  the  General 
Government.  On  the  one  hand,  it  is  maintained  "  that 
the  great  object  of  the  Constitution  was  to  nationalize 
the  commerce  and  navigable  waters  of  the  Union  by 
uniting  them  under  a  common  authority,  to  be  uni- 


260  LECTURES   ON 

forraly  exercised,  and  that  it  therefore  expressly  prohib- 
ited the  several  States  from  interfering  in  any  way  with 
that  authority.  To  those  who  assert  that  the  States 
possess  merely  a  concurrent  authority  which  they  may 
lawfully  exercise  upon  the  subject,  until  it  be  super- 
seded by  the  paramount  power  of  the  Federal  Govern- 
ment, it  has  been  deemed  sufficient  to  answer  that  the 
authority  of  the  Union,  at  any  rate,  becomes  supreme 
when  exercised.  Again,  that  at  the  time  of  forming 
the  Federal  Constitution,  the  common  right  of  all  the 
citizens  of  all  the  States  to  navigate  the  Mississippi 
and  the  Great  Lakes  was  emphatically  declared  to  be  a 
"  Right  of  the  Union,"  as  contradistinguished  from 
the  right  of  any  separate  State  ;  and  it  is  now  claimed 
that  this  sacred  and  fundamental  right  is  accompanied 
by  a  duty  equally  sacred  and  fundamental ;  that  the 
States  surrendered  to  the  Union  all  revenue  derived 
from  commerce,  and  thus  parted  with  the  very  means 
of  facilitating  the  business  which  produced  that  rev- 
enue ;  that  they  parted,  too,  with  the  control  of  those 
navigable  waters  which  furnish  the  channels  of  that 
commerce ;  that  the  States  could  never  have  intended 
to  deliver  themselves  up  to  the  care  of  the  Federal 
Government,  stripped  of  the  means  of  securing  the  first 
elements  of  their  prosperity,  and  thus  manacled  and 
fettered — without  an  equivalent;  and  the  only  equiv- 
alent which  the  case  admitted  was  the  substitution 
of  the  Federal  Government  for  the  exercise  of  the 
powers,  and  the  performance  of  those  correlative  duties 
which  the  exigencies  of  the  Confederacy  forbade  to  the 
States ;  that,  in  the  very  nature  of  things,  the  Federal 
Government  took  the  place,  and  received  the  powers  — 
and,  thereby,  assumed  the  duties,  of  the  States  respec- 


CONSTITUTIONAL  JURISPRUDENCE.  261 

tively  —  which  they  could  not  separately  exercise  con- 
sistently with  the  peace  and  prosperity  of  the  whole ; 
and  that  this  was  the  great  compromise  of  the  Consti- 
tution." ^ 

On  the  other  hand,  it  is  contended  "  that  the  Gov- 
ernment of  the  United  States  is  not  a  Union,  but  a 
'  Confederacy  ' ;  in  other  words,  that  the  People  of 
the  United  States  are  not  a  Nation,  but  merely  a 
League  of  States  absolutely  sovereign ;  that  the  Nation 
acts,  on  a  grand  scale,  only  as  a  common  attorney  for 
those  Sovereign  States,  each  of  which  may  judge  of 
the  extent  of  the  powers  granted — which  are  strictly 
limited  and  must  be  strictly  construed;  that  the  Tribu- 
nals expressly  provided  by  the  Constitution  have  no 
authority  to  decide  upon  the  extent  of  such  limitation, 
but  that  the  President — especially  if  elected  by  the 
party  holding  these  doctrines — has  full  power  to  narrow 
the  exercise  of  the  powers  by  Congress  to  suit  his  own 
peculiar  tenets."  It  is  somewhat  difficult  to  define  or 
comprehend  the  doctrines  of  this  class  of  politicians, 
but  they  seem  to  be  these  :  That  the  power  to  regulate 
commerce  is  merely  the  abstract  power  to  regulate  the 
duties  to  be  imposed  upon  it,  and  prohibit  the  States 
from  imposing  such  duties;  that  if  the  power  exists 
at  all  to  afford  any  physical  facilities,  it  is  limited  to 
high-water  mark;  that  Rivers  cannot  be  improved  above 
the  ports  of  entry  established  by  Congress ;  that  a  River 
cannot  be  improved  if  lying  wholly  within  a   State ; 

'  Vide  the  Address  of  the  Convention  of  Delegates  from  eighteen 
of  the  States,  assembled  at  Chicago,  in  July,  1847,  drawn  up  by  that 
distinguished  jurist  and  statesman,  the  late  John  C.  Spencer,  who 
attended  as  a  Delegate  from  New  York, —  and  their  Memorial  pre- 
sented to  Congress  at  its  next  session. 


262  LECTURES   ON 

that  it  is  not  enough  for  a  River  to  separate  two  States, 
but  it  must  adjoin  or  pass  through  three,  at  least;  that 
Harbors  constructed  by  the  General  Government,  must 
be  harbors  for  shelter  and  not  for  commerce  ;  that  if  it 
be  lawful  to  deepen  navigable  waters,  it  is  not  lawful 
to  place  in  them  piers  or  any  similar  structures,  as  that 
would  encroach  upon  the  territorial  jurisdiction  of  a 
State,  and  trespass  on  its  sovereignty;  that  it  is  not 
lawful  to  remove  obstructions  in  navigable  waters,  but 
that  it  is  lawful  to  erect  beacons  on  those  obstructions, 
although  at  a  cost  greater  than  the  expense  of  removal." 
On  grounds  such  in  substance  as  these,  bills  for  the 
improvement  of  certain  Rivers  and  Harbors  have  been 
vetoed  by  several  of  our  Presidents ;  and*  on  the  last 
occasion,  a  public  meeting  was  held  in  the  city  of  New 
York,  which  was  addressed  by  Samuel  B.  Ruggles, 
Esq.,  an  eminent  member  of  the  Bar,  with  great  force 
and  eloquence.  He  observed  that  the  "  masterly  expo- 
sition" made  by  Mr.  Spencer  at  Chicago,  of  the  right 
and  duty  of  Congress  to  improve  the  Rivers  and  Har- 
bors of  the  Union,  was  "  not  only  one  of  the  most 
valuable  state-papers  ever  produced  in  this  country," 
and  conclusive  upon  the  immediate  subject,  but  that 
it  demonstrated  besides,  "the  utter  fallacy,  folly,  and 
unconstitutionality  of  a  plan  of  State  tonnage  duties  " 
which  had  been  proposed  by  the  opponents  of  the  im- 
provements contemplated  by  the  Bills  in  question.  A 
Bill  had  been  introduced  into  the  House  of  Representa- 
tives, giving  the  consent  of  Congress  to  certain  local 
tonnage  duties  to  be  levied  by  the  States,  and  was 
referred  to  the  Committee  of  Commerce,  of  which  Mr. 
Washington  Hunt,  afterwards  Governor  of  New  York, 
was  Chairman.    The  Report  he  presented  to  the  House 


CONSTITUTIONAL   JURISPKUDENCE.  263 

condemned  the  plan  in  the  strongest  terms.  It  took  a 
broad  and  comprehensive  view  of  the  commerce,  foreign 
and  domestic,  of  the  United  States,  and  insisted  upon 
the  just  right  of  every  portion  of  the  Union  to  be  fairly 
protected  in  its  enjoyment;  it  placed  upon  a  proper 
national  basis,  the  duty  which  the  Federal  Government 
had  for  a  long  time  neglected,  and  reprobated  the  veto 
interposed  by  the  President  to  the  Harbor  Bill  passed 
by  both  Houses  of  Congress.  The  Resolutions  by 
which  the  Report  was  accompanied  were  passed  by 
large  majorities,  although  the  votes  of  two  thirds  of 
the  House  of  Representatives  were  not  obtained  to  pass 
the  Harbor  Bill,  notwithstanding  the  objections  of  the 
President.  Nor  was  any  such  bill  passed  by  Congress 
until  the  accession  of  Mr.  Fillmore  to  the  Presidency.^ 

Although  the  power  to  regulate  commerce  includes, 
as  we  have  seen,  navigation,  and  pilot-laws  are  regula- 
tions of  navigation,  and,  therefore,  of  commerce,  within 
the  grant  to  Congress,  yet  it  does  not  preclude  the 
States  from  passing  laws  to  regulate  the  pilotage.  The 
power  in  question  includes  various  subjects,  upon  some 
of  which  there  should  be  a  uniform  rule,  and  upon 
others,  different  rules  in  different  localities.  The  power 
in  the  former  class,  is  exclusively  in  Congress  ;  but  not 
in  the  latter.^ 

Under  this  power  to  regulate  commerce,  Congress 
can  exclude,  either  partially  or  wholly,  any  subject  fall- 
ing within  the  legitimate  sphere  of  commercial  regu- 
lation.^    Nor  is  this  doctrine   inconsistent  with   those 

1  Vide  "  A  Defence  of  the  Rights  and  Duties  of  the  American 
Union  to  improve  its  Navigable  Waters,"  by  Samuel  B.  Ruggles,  Esq., 
New  York,  1852. 

2  12  Howard,  299.  3  9  /jj^;.  560. 


264  LECTURES   ON 

maintained  by  the  Supreme  Com't  in  the  case  of  Fox 
V.  The  State  of  Ohio,^  where  it  was  held  that  the  power 
conferred  on  Congress  "  to  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current  coins  of  the 
United  States,"  does  not  prevent  a  State  from  passing  a 
law  to  punish  the  offence  of  circulating  such  counterfeit 
coins. 

The  power  of  prohibiting  the  importation  of  slaves 
into  the  United  States,  after  a  certain  period  had 
elapsed,  and  of  imposing  a  duty  on  their  importation 
during  the  intermediate  period,  is  virtually  included 
in  the  power  to  regulate  commerce,  as  the  exception 
which  postponed  its  exercise  arose  from  an  express 
restriction  of  the  general  power,  and  in  construing  the 
Constitution  as  to  grants  of  power  to  the  United  States 
and  the  restrictions  upon  the  States,  the  Supreme  Court 
has  always  held  that  an  exception  of  any  particular 
case,  presupposes  that  those  which  are  not  excepted, 
are  included  within  the  grant  or  prohibition ;  and  has 
laid  it  down  as  a  general  rule,  that  where  no  exception 
is  made  in  terms,  none  will  be  made  by  implication  or 
construction.^ 

The  words  of  the  Constitution  vesting  this  power 
are,  "  The  migration  or  importation"  (not  of  slaves^  for 
that  word  is  not  to  be  found  in  the  Constitution,  but) 
"  of  such  persons  as  any  of  the  States  now  existing 
shall  think  proper  to  admit,  shall  not  be  prohibited 
prior  to  the  year  1808."  It  is  by  no  means  difficult  to 
account  either  for  the  existence  of  this  restriction,  or  for 
the  terms  in  which  it  is  expressed ;  and  although  it  is 

1  5  Howard,  433. 

8  12  Peters,  419,  G57  ;  6  Wheat.  264 ;  9  Ihid.  206. 


CONSTITUTIONAL  JURISPRUDENCE.  265 

certainly  to  be  wished  that  the  power  in  question  had 
been  free  from  it,  yet  it  ought  to  be  remembered  that  a 
great  point  was  gained  in  favor  of  humanity  by  fixing 
a  period  for  the  termination  of  this  barbarous  traffic. 
Before  the  time  arrived,  the  interdiction  was  prospec- 
tively enacted  by  Congress,  and  it  took  effect  in  time  to 
afford  an  example  to  civilized  Europe  of  abolishing  a 
species  of  commerce  which  had  been  the  opprobrium 
of  modern  policy.  This  interdiction  was  followed  up 
by  denouncing  the  foreign  slave-trade  as  piracy,  and 
rendering  it  punishable  with  death  when  pursued  by 
our  own  citizens  ;  and,  by  the  treaty  with  Great  Britain 
of  1815,  we  have  stipulated  to  cooperate  with  her,  by 
means  of  our  navy,  to  suppress  it  more  effectually. 
But  still  the  blot  remains :  for,  though  the  toleration 
granted  by  the  Constitution  was  confined  to  the  States 
"  then  existing,"  yet  Congress  has  refused  to  imitate 
the  example  of  their  predecessors  under  the  Confedera- 
tion, who  prohibited  slavery  in  the  Territories  ceded  by 
the  elder  States  for  the  common  benefit,  by  a  similar 
restriction  upon  the  new  States  created  in  them  ;  it  has 
abstained  from  suppressing  the  domestic  slave-trade,  or 
"the  migration  of  such  persons  as  any  of  the  States 
then  existing  should  think  proper  to  admit,"  which  was 
not  exempted  from  the  power  of  regulating  commerce 
among  the  States  for  any  longer  period  than  the  foreign 
slave-trade  was  tolerated  as  an  exception  to  the  power 
of  regulating  commerce  with  foreign  nations.  Nor  has 
it  listened  to  the  numerous  petitions  for  abolishing 
slavery  and  the  slave-trade  in  the  Territories  under  its 
exclusive  jurisdiction,  and  especially  in  the  District  of 
Columbia,  the  seat  of  the  National  Government,  the 
residence  of  the  representatives  of  foreign  sovereigns, 
23 


266  LECTURES   ON 

and  the  resort  of  strangers  and  visitors  from  all  quarters 
of  the  globe. 

The  founders  of  the  Republic  seem,  universally,  to 
have  regarded  slavery  as  an  evil ;  and  under  the  Con- 
federation, provided,  in  the  Ordinance  of  1787  for  the 
government  of  the  Territory  of  the  United  States, 
Northwest  of  the  River  Ohio,  against  the  introduction 
and  existence  of  slavery  therein. 

The  original  author  of  this  celebrated  measure  was 
Mr.  Jefferson.  As  chairman  of  a  committee  appointed 
to  prepare  a  plan  for  the  government  of  this  newly 
acquired  Territory,  he  reported  to  Congress  an  Ordi- 
nance for  that  purpose  in  1784.  As  it  came  from  his 
hands,  it  contained  the  prohibition  against  the  introduc- 
tion of  slavery ;  but  the  clause  was  stricken  out  in 
Congress,  at  the  instance  of  the  three  Southern  States 
present,  because  it  was  unaccompanied  by  any  pro- 
vision for  the  recovery  of  fugitive  slaves ;  and  the 
Ordinance  was  passed  without  any  attempt  to  reinstate 
the  clause.  The  next  year,  this  prohibitory  clause,  with 
some  modification,  was  moved  by  Mr.  Rufus  King,  then 
of  Massachusetts,  and  was  referred,  as  a  proposition  to 
a  Committee,  but  was  not  then  acted  upon.^  Upon  its 
revision,  in  1787,  the  Ordinance  was  adopted  as  it  now 
stands,  and  it  may  well  be  considered  as  a  Southern 
measure,  not  only  from  the  source  whence  it  sprang, 
but  from  the  circumstance  that  three  of  the  six  mem- 
bers who  composed  the  Committee  were  from  slave- 
holding  States — two  of  them,  including  the  Chairman, 
from  Virginia,^ — and  it  was  finally  passed  by  the  votes 

1  See  Journ.  Cong.  1784-1785. 

2  The  authorship  of  the  Ordinance  of  1787,  has  been  claimed  for 
Mr.  Nathan  Dane,  of  Massachusetts  ;   but  that  gentleman  did  not 


CONSTITUTIONAL  JURISPRUDENCE.  267 

of  the  eight  States  present,  and  received  the  individual 
vote  of  every  member  present,  except  one  from  New 
York.^  By  the  same  vote  the  Ordinance  of  1784  was 
repeated.^ 

The  evil  as  it  existed  in  the  individual  States,  was 
not  considered  beyond  cure.  In  several  of  them,  sys- 
tems of  gradual  emancipation  were  adopted  at  an  early 
day ;  and  for  some  years  a  remedy,  slow  but  sure,  was 
silently  operating  in  those  slave  States  which  bounded 
upon  those  from  which  slavery  was  excluded.  It  was 
supposed  that  the  former  would  be  compelled  to  aban- 
don slave  labor,  from  its  inability  to  compete  success- 
fully with  the  labor  of  freemen.  But  the  introduction 
of  the  cotton-plant  into  the  Southern  States,  and  its 
cultivation  as  an  article  of  profitable  commerce,  in- 
creased the  demand  for  laborers  of  African  birth  or 
descent,  who,  by  their  physical  constitution,  w^ere  sup- 
posed to  be  the  best  adapted,  if  not  alone  able,  to  bear 
the  exposure  incident  to  that  species  of  cultivation. 
The  foreign  slave-trade  was  soon  to  be  abolished,  and 
the  subsequent  supply  could  then  only  be  afforded  by 
those  States  in  which  slavery  still  existed.  The  demand 
thus  created  operated  as  a  temptation  to  retain  slavery 
where  the  labor  of  slaves  was  no  longer  necessary,  for 
the  mere  purpose  of  furnishing,  through  their  natural 
increase,  an  article  of  commerce  with  those  States 
where  their  labor  continued  to  be,  or  had  become 
profitable.         • 

enter  Congress  until  nearly  two  years  after  1784,  and  although  a 
member  of  the  committee  of  1787,  he  was  not  its  Chairman. 

1  Mr.  Yates,  afterwards  Chief  Justice  of  the  Supreme  Court  of 
that  State. 

2  See  Journ.  Cong.  July  11,  12,  13,  1787. 


268  LECTURES   ON 

The  acquisition  of  Louisiana  brought  with  it  an 
additional  number  of  slaves  ;  and  as  its  population 
increased,  and  its  agriculture  extended,  a  new  market 
Opened  for  them.  When  the  Missouri  Territory,  which 
had  been  set  off  from  Louisiana,  organized  itself  as  a 
State,  in  1829,  and  sought  admission  into  the  Union, 
as  a  slave  State,  it  did  not  gain  it  until  after  a  severe 
struggle.  The  opposers  of  the  measure  endeavored  to 
apply  to  it  the  provision  of  the  Ordinance  of  1787,  the 
authorship  of  which  had  been  ascribed  to  Mr.  Jefferson, 
whose  authority  they  quoted  in  support  of  their  argu- 
ments. As  one  of  the  Revisers  of  the  Laws  of  Vir- 
ginia, soon  after  the  Revolution,  that  eminent  statesman 
and  philanthropist  proposed  to  emancipate  all  slaves 
born  subsequently  to  the  adoption  of  the  revised  stat- 
utes, but  that  they  should  continue  with  their  parents 
to  a  certain  age,  and  then  be  brought  up  at  the  public 
expense,  until  the  females  should  have  attained  the  age 
of  eighteen  years,  and  the  males,  twenty-one ;  "  when 
they  should  be  colonized  to  such  place  as  the  circum- 
stances of  the  time  should  render  most  proper^  to  declare 
them  an  independent  people,  and  extend  to  them  our  alli- 
ance and  protection,  till  they  have  acquired  strength."  * 
Thus  foreshadowing,  with  a  remarkable  coincidence, 
the  scheme  since  so  beneficially  carried  out  by  the 
American  Colonization  Society .^ 

1  Notes  on  Virginia,  Query,  XIV.  page  203,  Pennington  &  Gould's 
edit,  N.  y.,  1801. 

2  Amongst  the  objections  that  Mr.  Jefferson  supposed  would  be 
made  to  bis  project,  he  anticipated  the  question,  "  Why  not  retain, 
and  incorporate  the  blacks  into  the  State  ?  "  To  this  he  emphatically 
replied:  "Deep-rooted  prejudices  entertained  by  the  whites;  ten 
thousand  recollections  by  the  blacks  of  the  injuries  they  have  sus- 
tained ;  new  provocations  ;  the  real  di3tinetions  that  nature  has  made, 


CONSTITUTIONAL  JURISPRUDENCE.  269 

The  opposition  to  the  admission  of  Missouri  into 
the  Union  as  a  State,  terminated,  as  is  well  known,  in 
the  compromise  that  no  other  slave  State  should  be 
admitted  beyond  the  parallel  of  36°  30'  of  North  lati- 
tude; and  thus  was  an  agitation  which,  for  a  while, 
interrupted  the  harmony,  and  threatened  the  integrity 
of  the  Union,  quieted  for  a  season.  When  the  Floridas 
were  acquired,  and  had  passed  from  the  condition  of  a 
Territory  into  that  of  a  State,  no  question  of  this  kind 
could  arise,  as  it  lay  below  the  line  reserved  to  freedom. 
But  upon  the  subsequent  acquisition  of  the  extensive 
territories  ceded  by  Mexico,  another  and  more  violent 
agitation  of  the  same  questions  which,  on  the  former 
occasions,  disturbed  the  peace,  of  the  Union,  again  arose, 
and  were  again  ended  in  a  compromise  which  included 

and  many  other  circumstances,  will  divide  us  into  parties,  and  produce 
convulsions  which  will  probably  end  but  in  the  extermination  of  one 
or  the  other  race.     Ibid.  p.  204. 

In  1803,  another  Virginian  of  equal  celebrity,  John  Randolph,  of 
Roanoke,  as  Chairman  of  a  Committee  of  the  House  of  Representa- 
tives, to  whom  was  referred  a  memorial  from  Indiana,  praying  for  a 
temporary  suspension  of  the  anti-slavery  clause  of  the  Ordinance  of 
1787,  reported  against  it  as  follows:  "That  the  rapid  population  of 
the  State  of  Ohio  sufficiently  evinces  that  the  labor  of  the  slave  is 
not  necessary  to  promote  the  growth  and  settlement  of  colonies  in 
that  region ;  that  this  labor, —  demonstrably  the  dearest  of  any, —  can 
only  be  employed  to  advantage  in  the  cultivation  of  products  more 
valuable  than  any  known  to  that  quarter  of  the  United  States ;  and 
the  Committee  deem  it  highly  dangerous  and  inexpedient  to  impair  a 
provision  wisely  calculated  to  promote  the  happiness  and  prosperity 
of  the  Northwestern  Country,  and  to  give  strength  and  security  to  that 
extensive  frontier.  In  the  salutary  operation  of  this  sagacious  and 
benevolent  restraint,  it  is  believed  that  the  inhabitants  of  Indiana 
will,  at  no  very  distant  day,  find  ample  remuneration  for  a  temporary- 
privation  of  labor  and  emigration."     Journ.  H.  of  Rep.  1803. 

23* 


270  LECTURES   ON 

further  and  more  stringent  provisions  for  the  surrender 
of  "  fugitives  from  labor,"  or  slaves  escaping  from  their 
Southern  Masters,  and  taking  refuge  in  the  free  States. 

A  provision  for  this  purpose  was  one  of  the  compro- 
mises of  the  Constitution ;  and  from  the  phraseology 
of  the  clause  containing  it,  it  would  seem  to  have  been 
intended  to  throw  the  duty  of  surrendering  the  fugitive 
upon  the  State  into  which  he  might  escape  ;  and,  con- 
sequently, to  impose  upon  the  Courts  and  Magistrates 
of  that  State,  the  obligation  of  giving  effect  to  the 
provision  by  their  official  interposition.^  But,  as  we 
have  seen,  the  duty  of  executing  the  laws  of  the  Union, 
by  those  Courts  and  officers,  was  held  to  be  optional 
with  them,  and  no  State  had  passed  a  law  to  render  it 
otherwise.  From  these  circumstances,  probably,  Con- 
gress was  induced,  notwithstanding  the  prevalence  of 
the  opinion  just  mentioned,  and  not  until  some  few 
years  after  the  adoption  of  the  Federal  Constitution,  to 
pass  the  Act  of  1793,  relative  to  fugitives  from  labor, 
as  well  as  from  justice. 

The  constitutionality  of  this  Act,  though  strenuously 
questioned,  has  been  eventually  affirmed  by  the  Su- 
preme Court  of  the  United  States,  in  all  its  leading 
provisions, —  except  that  which  confers  authority  upon 
State  Magistrates.^  The  Judges,  however,  were  not 
unanimous  in  their  general  view  of  this  clause  of  the 
Constitution ;  and  the  question  may  again  be  brought 
in  review  before  the  Court  in  relation  to  the  new  Act 
upon  the  subject  passed  in  1850,  as  that  Act  presents 
new  matter  for  consideration ;  and  from  the  contrariety 

1  See  Const.  U.  S.,  Art.  IV.  Sect.  ii.  3. 

2  16  Peters,  539. 


CONSTITUTIONAL  JURISPRUDENCE.  271 

of  the  views  taken  by  the  Judges  in  regard  to  the 
former  Act,  as  well  as  from  circumstances  since  tran- 
spired in  some  of  the  States,  it  is,  indeed,  desirable  that 
the  subject  should  be  deliberately  reconsidered.^ 

1  An  occasion  for  such  a  review  will  probably  be  afforded  in  con- 
sequence of  a  recent  decision  of  one  of  the  State  Courts,  which  it 
may  be  safely  presumed  will  not  be  acquiesced  in,  but  carried  up  to 
the  Supreme  Court  of  the  United  States.  A  person  charged  with 
having  participated  in  the  forcible  rescue  of  a  fugitive  slave  was 
brought  up  on  a  Habeas  Corpus  before  one  of  the  Judges  of  the 
Supreme  Court  of  Wisconsin,  and  discharged.  The  opinion  delivered 
by  the  Judge  is  very  long  and  elaborate.  The  chief  points  made  are 
that  the  article  in  the  Constitution  on  which  the  law  of  1850,  for  the 
reclamation  of  fugitive  slaves  rests,  was  merely  a  compact  by  the 
contracting  parties  to  the  Constitution,  by  which  the  free  States  were 
to  be  bound  to  provide  legislation  under  due  course  of  law,  and 
after  examination  of  facts,  for  the  return  of  such  persons,  but  that  no 
power  was  conferred  upon  Congress  to  legislate  upon  the  matter,  and 
that  it  is  the  duty  of  the  States  to  provide  such  legislation.  The  fact 
that  Congress  has  not  power  to  punish  State  officers  for  refusing  to 
provide  such  legislation,  is  a  proof  that  the  matter  remains  in  form  of 
a  compact.  That  it  is  clear  that  Congress  cannot  constitutionally  act 
upon  this  subject;  while  it  is  also  clear  that  the  States  cannot  pass 
laws  discharging  fugitives  from  service.  All  such  laws  must  be  void. 
That  the  Constitution  contemplates  an  examination  into  the  claims  of 
the  claimant  of  the  fugitive,  to  be  made  where  he  is,  by  presumption, 
free,  while  the  Act  of  1850  makes  the  decision  or  warrant  of  a  Judge 
or  Commissioner  a  judgment  in  fact,  without  trial  or  examination. 
That,  in  order  to  ascertain  to  whom  "  such  service  or  labor  is  due," 
examination  and  inquiry  must  be  made.  If  services  or  labor,  is  due, 
the  fugitive  must  be  given  up ;  but  the  fact  must  be  ascertained. 
There  is  an  issue  of  fact  to  be  tried.  The  suit  to  try  this  fact  is  not 
a  suit  in  Equity  or  Admiralty,  and  must  be  at  Common  Law ;  hence 
a  trial  by  Jury  is  demanded  properly.  The  Act  of  1850  is  unconsti- 
tutional, in  that  it  violates  the  principles  which  forbid  that  persons 
shall  be  deprived  of  liberty  without  "  due  process  of  law."  The 
summary  proceedings  under  this  Act  of  1850   clearly  violate  this 


272  LECTURES   ON 

This  Act  of  1850,  together  with  others  passed  at  the 
same  time,  formed  a  new  compromise.  It  adopts  the 
same  parallel  of  latitude  for  the  exclusion  of  slavery, 
extending  through  the  additional  territory  acquired  from 

provision.  He  refers  at  length  to  the  varying  sentiments  of  the  Court 
in  the  case  of  Prigg  v.  Pennsylvania,  and  thinks  that,  in  view  of  the 
doubts  thrown  around  that  case  by  the  United  States  Judges  them- 
selves, they  ought  to  review  their  decision.  The  case  having  been 
carried  up  to  the  Supreme  Court  of  the  State,  this  opinion  was  sus- 
tained and  affirmed  mainly  on  two  grounds :  the  insufficiency  of  the 
commitment,  and  the  unconstitutionality  of  the  Fugitive  Slave  Act 
in  delegating  to  Commissioners  the  power  to  hear  and  determine  in 
cases  arising  under  this  Act.  One  of  the  Judges,  who  concurred 
with  his  brethren  in  holding  that  the  party  was  properly  discharged 
from  arrest,  and  that  the  writ  of  Habeas  Corpus  was  rightly  granted, 
dissented  from  the  view  taken  of  the  unconstitutionality  of  the  Fugi- 
tive Slave  Act. 

The  Court,  in  giving  its  opinion,  insisted  upon  the  fallacy  in  the 
argument  that  the  proceedings  under  the  Fugitive  Slave  law  are 
analogous  to  those  by  which  the  fugitive  from  justice  is  delivered  up. 

The  fugitive  from  justice  is  delivered  to  an  agent  appointed  by  the 
Governor  of  the  State  where  the  offence  is  alleged  to  have  been  com- 
mitted, without  any  adjudication  upon  the  question  of  his  guilt  or 
innocence ;  in  other  words,  he  is  delivered  to  the  officer  of  the  law, 
and  is  in  the  custody  of  the  law  for  the  purpose  of  being  taken  to  the 
State  where  alone  he  can  be  tried  for  the  alleged  offence.  But  the 
case  is  very  different  with  the  alleged  fugitive  from  labor.  There  is  an 
adjudication  before  the  Commissioner,  that  he  owes  service  or  labor, 
and  that  he  has  escaped.  By  force  of  the  Act  of  Congress  under 
consideration,  the  record  made  in  the  State  from  which  he  is  said  to 
have  escaped,  is  conclusive  evidence  that  his  status  is  that  of  a  slave. 

The  Commissioner  is  obliged,  if  his  identity  is  proved,  so  to  adjudge, 
and  the  certificate,  which  is  given  to  the  claimant,  is  given  because 
the  Commissioner  has  so  adjudged. 

But  the  Court  regarded  this  power  given  to  the  Commissioner  to 
send  the  alleged  fugitive  from  labor  back  to  the  State  from  which  he  is 
alleged  to  have  escaped,  as  a  condemned  slave,  to  be  unconstitutional. 


CONSTITUTIONAL  JURISPRUDENCE.  273 

Mexico.  It  withdraws  from  the  State  Courts  and 
Magistrates  all  jurisdiction  in  regard  to  fugitives  from 
labor,  vesting  it,  exclusively,  in  the  Courts  and  officers 
of  the  United  States  ;  and  gives  greater  facilities  for 
the  recovery  of  the  fugitive,  and  heavy  penalties  for 
interference  with  its  execution.  Thus,  again,  was  agita- 
tion calmed,  and  peace  restored,  as  it  was  supposed, 
permanently.  But  that  hope  has  proved  delusive.  At 
the  first  session  of  the  thirty-third  Congress,  an  Act 
passed  for  organizing  the  Territorial  Governments  of 
Nebraska  and  Kansas,  portions  of  the  former  Province 
of  Louisiana,  but  lying  north  of  the  parallel  of  36°  3(y, 
and  nearly  uninhabited,  except  by  roving  bands  of 
Indians. 

This  Act,  which  repeals  the  prohibition  of  slavery 
beyond  that  parallel,  and  thus  opens  to  it  those  exten- 
sive regions,  has  given  rise  to  greater  and  more  de- 
termined opposition,  and  more  violent  and  serious 
agitation  than  was  manifested  on  any  former  occasion. 
A  remedy,  however,  may,  in  this  case,  be  afforded  by 
the   projected  settlement   of  these   Territories  by  free 

because  judgment  is  entered  against  him  without  "due  process  of 
law,"  and  without  his  rights  being  determined  by  a  jury.  A  State 
under  its  general  and  admitted  power  to  define  and  punish  offences 
against  its  own  peace  and  policy,  may  repel  from  its  borders  an  unac- 
ceptable population,  whether  paupers,  criminals,  fugitive,  or  liberated 
slaves;  and  consequently  may  punish  her  citizens,  and  others  who 
thwart  this  policy,  by  harboring,  secreting,  or  in  any  way  assisting 
such  fugitives.  15  Howard,  13.  In  this  case,  it  was  held  by  Taney, 
Chief  Justice,  that  not  only  are  the  States  not  prohibited  from  legis- 
lating respecting  the  surrender  of  fugitive  slaves,  but,  on  the  contrary, 
that  it  is  enjoined  upon  them  as  a  duty  to  protect  and  support  the 
owner  when  he  is  endeavoring  to  obtain  possession  of  his  property 
found  within  their  respective  limits. 


2T4  LECTURES   ON 

immigrants.  Such,  indeed,  would  probably  have  been 
their  character,  without  any  attempt  to  secure  that 
result,  and  notwithstanding  the  efforts  to  counteract 
the  design  by  the  immediate  introduction  of  slaves. 
Nor  do  the  authors  of  the  repeal  seem  to  have  con- 
templated any  other  event ;  but  to  have  advocated  and 
sustained  their  measure  with  the  view  of  establishing 
it  as  a  '■'■principle,^''  and  applying  it,  as  a  precedent,  to 
future  acquisitions  of  territory.  Unfortunately,  their 
designs  have  been  forwarded,  rather  than  impeded,  by 
the  very  interference  intended  to  defeat  them.  But, 
however  impotent  must  ever  prove  the  rash  and  unto- 
ward attempts  of  those  claiming  to  be  the  exclusive 
friends  and  infallible  advocates  of  emancipation,  who, 
with  the  blindness  of  ignorance  and  fanaticism,  de- 
nounce all  who  refuse  to  cooperate  in  their  impracti- 
cable schemes,  henceforth,  the  influence  of  these  zealots, 
increased  as  it  has  been  by  the  equally  rash  proceedings 
of  fanatics  of  another  character,  and  in  another  quarter, 
will  be  merged  in  a  more  general  and  enlightened  oppo- 
sition to  the  measures  in  question.  And  may  we  not 
hope  that  the  latent  patriotism  of  their  authors  and 
abettors  wUl  deter  them  from  persevering  in  their  reck- 
less course,  at  the  risk  of  severing  the  Union,  and  the 
sacrifice  of  their  own  usefulness ;  or,  if  this  should  fail, 
may  we  not  still  hope  that  the  natural  influence  of 
benevolence,  mildness,  and  Christian  charity  and  moder- 
ation will  advance  in  geometrical  progression,  until  the 
foul  blot  upon  the  national  escutcheon  be  obliterated, 
rather  by  the  hand  of  Providence,  than  by  any  effort 
of  our  own. 

Deus  hcec  fortasse  henigna, 

Reducit  in  sedem  vice. 


CONSTITUTIONAL  JURISPRUDENCE.  275 


LECTURE    IX. 

ON    THE    POWERS   VESTED   IN   THE   FEDERAL    GOVERNMENT 
FOR  MAINTAINING  HARMONY  AMONG  THE   STATES. 

The  authority  vested  in  the  General  Government  to 
provide  for  the  maintencmce  of  harmony  and  proper 
intercourse  among  the  States,  comprises  the  third  class 
of  powers  enumerated  in  the  Constitution.  Under  this 
head  might,  with  propriety,  be  included  the  particular 
restraints  on  the  authority  of  the  States,  and  certain 
powers  vested  in  the  Judicial  department ;  but  the 
former  are  reserved  for  a  distinct  head  of  consideration, 
and  the  latter  have  already  been  reviewed  in  our  ex- 
amination of  the  structure  and  organization  of  the 
Government. 

The  remaining  powers  comprehended  in  this  descrip- 
tion are, 

First.  To  regulate  commerce  among  the  several 
States,  and  with  the  Indian  tribes. 

Second.  To  establish  post-offices  and  post-roads. 

Third.  To  coin  money,  and  regulate  the  value  thereof, 
and  of  foreign  coin ;  to  fix  the  standard  of  weights  and 
measures. 

Fourth.  To  provide  for  the  punishment  of  counter- 
feiting the  securities  and  current  coin  of  the  United 
States. 

Fifth.  To  prescribe  by  general  laws  the  manner  in 


276  LECTURES   ON 

which  the  public  acts,  records,  and  Judicial  proceedings 
of  one  State  shall  be  proved,  and  the  effect  they  shall 
have  in  another. 

Sixth.  To  establish  a  uniform  rule  on  the  subject  of 
naturalization  throughout  the  United  States. 

Seventh.  To  establish  uniform  laws  on  the  subject  of 
bankruptcies. 

I.  The  power  to  regulate  commerce  among  the  States 
had  been  clearly  pointed  out,  by  experience  under  the 
Confederation,  to  be  essential  to  the  General  Govern- 
ment. Without  this  supplemental  provision,  indeed, 
the  primary  and  indispensable  power  of  regulating 
foreign  commerce  would  have  been  incomplete  and 
ineffectual,  if  not  altogether  nugatory.  A  very  mate- 
rial object  of  the  power  was  to  secure  those  States 
which  import  and  export  through  other  States  from 
unjust  contributions  levied  on  them  by  the  latter.  It 
was  foreseen  that,  if  the  several  States  were  left  at 
liberty  to  regulate  their  mutual  commerce,  means  would 
be  discovered  or  devised  to  load  articles  of  produce  and 
merchandise,  in  their  transit,  with  duties  that  would 
eventually  fall  on  the  growers  or  manufacturers  of  the 
one,  and  the  consumers  of  the  other.  Such  practices 
had  prevailed,  and  it  was  justly  apprehended  that  their 
continuance  would  nourish  increasing  animosities,  and 
not  improbably  terminate  in  serious  interruptions  of  the 
public  tranquillity. 

In  the  important  case  referred  to  in  the  last  Lecture,^ 
the  whole  doctrine  relative  to  the  construction  of  this 
part  of  the  Constitution  was  largely  and  deliberately 
discussed,  and  definitively  and  satisfactorily  settled.     It 

1  Gibbons  v.  Ogden. 


CONSTITUTIONAL  JURISPRUDENCE.  277 

was  declared  on  that  occasion,  that  the  power  to  regu- 
late commerce  among  the  States  did  not  extend  to 
that  commerce  which  is  completely  internal ;  and  that, 
comprehensive  as  are  the  terms  in  which  it  is  conferred, 
the  power  in  question  is,  nevertheless,  restricted  to 
that  commerce  which  concerns  more.  States  than  one. 
Those  terms  would  hardly  have  been  selected  to  indi- 
cate the  completely  interior  traffic  of  a  State,  because 
they  are  not  apt  terms  for  that  purpose ;  and  the  enu- 
meration of  the  particular  classes  of  commerce  to  which 
the  power  was  to  extend  would  not  have  been  made, 
had  the  intention  been  to  extend  the  power  to  com- 
merce of  every  description.  The  specification  itself 
presupposes  something  not  specified,  and  from  the  lan- 
guage and  subject  of  the  clause,  it  would  seem  that 
the  exclusively  internal  commerce  of  a  State  is  not 
comprehended.  The  genius  and  character  of  the  whole 
Government,  indeed,  evince  that  its  action  is  to  be 
applied  to  all  the  external  concerns  of  the  nation,  and 
to  those  internal  concerns  which  affect  the  States  gen- 
erally, but  not  to  those  which  are  completely  within  a 
particular  State,  which  do  not  affect  other  States,  and 
with  which  it  is  not  necessary  to  interfere  for  the  pur- 
pose of  executing  any  of  the  general  powers  of  the 
Federal  Government. 

The  completely  internal  commerce,  therefore,  of  every 
State  is  reserved  for  the  State  itself.  But  as  the  power 
of  Congress  in  regulating  foreign  commerce  does  not 
stop  at  the  jurisdictional  lines  of  the  States,  and  would 
be  a  very  useless  power  if  it  did  not  pass  those  limits, 
it  is,  if  possible  clearer,  that  the  power  to  regulate 
commerce  among  the  States  is  not  limited  by  State 
boundaries.  For  not  only  do  waters  communicating 
24 


278  LECTURES   ON 

with  the  ocean  penetrate  into  the  interior  of  the  country, 
and  pass  in  their  course  through  several  States,  but  in 
many  cases — in  the  signal  instance  of  the  Western 
Lakes — there  are  waters  in  and  upon  the  boundaries 
of  several  States,  which  are  not  navigable  to  the  sea 
for  the  purposes  ,of  foreign  commerce,  while  they  fur- 
nish means  of  commercial  intercourse  between  those 
States,  and,  consequently,  afford  occasions  to  Congress 
for  the  exercise  of  the  power  in  question.  This  power 
must  be  exercised  wherever  the  subject  exists,  and  if 
the  means  of  commercial  intercourse  among  the  States 
exist  within  a  State  — if  a  coasting  voyage  may  com- 
mence or  terminate  within  a  State — then  the  power 
of  Congress  to  regulate  commerce  among  the  several 
States  may  be  exercised  within  a  State. 

The  States  either  join  each  other,  in  which  case  they 
are  separated  by  a  mathematical  line,  or  they  are  re- 
mote from  each  other,  in  which  case  other  States  lie 
between  them.  How,  then,  it  has  been  asked,  is  com- 
mercial intercourse  between  them  to  be  conducted  ? 
A  trading  expedition  between  two  adjoining  States 
cannot  commence  and  terminate  beyond  the  limits  of 
either ;  and  if  the  trading  intercourse  be  between  two 
States  remote  from  each  other,  it  must  commence  in 
one,  terminate  in  another,  and  pass  through  at  least  a 
third.  Commerce  among  the  States  must  of  necessity, 
then,  be  commerce  within  a  State.  In  the  regulation 
of  the  trade  with  the  Indian  tribes,  the  action  of  the 
law,  especially  when  the  Constitution  was  made,  was 
chiefly  within  a  State ;  and  in  this  case,  as  well  as  in 
regard  to  commerce  among  the  States,  the  power  of 
Congress  is  coextensive  with  the  subject  on  which  it 
acts.     It  cannot,  in  either  case,  be  stopped  at  the  ex- 


CONSTITUTIONAL  JURISPRUDENCE.  279 

ternal  boundary  of  a  State,  but  must  enter  the  limits, 
and  be  exercised  within  the  territorial  jurisdiction  of  all 
the  States.  The  grant  of  Congress,  however,  to  regu- 
late commerce  on  the  navigable  waters  of  the  several 
States,  contains  no  cession  of  territory,  or  of  public  or 
private  property;  the  States  may  regulate  the  use  of 
fisheries  within  their  territorial  limits,  though  upon 
navigable  waters,  provided  their  free  use  for  the  pur- 
poses of  navigation  and  commerce  be  not  interrupted.^ 

The  power  of  Congress  to  regulate  commerce  among 
the  States,  extends  to  the  regulation  of  navigation,  and 
to  the  coasting  trade,  and  fisheries  within,  as  weU  as 
without  any  State,^  wherever  they  are  connected  with 
the  commercial  intercourse  with  any  other  State,  or 
with  foreign  nations.  It  extends  also  to  the  regulation 
and  government  of  seamen  ;  to  conferring  privileges 
upon  vessels  engaged  in  the  coasting  trade  ;  and  to  the 
navigation  of  vessels  engaged  solely  in  carrying  pas- 
sengers, as  well  as  to  those  engaged  in  traffic,  whether 
propelled  by  steam  or  otherwise. 

The  principles  laid  down  in  another  case,  also  re- 
ferred to  in  my  last  Lecture,  where  an  Act  of  a  Legis- 
lature requiring  importers  and  venders  of  foreign  goods 

1  4  Wash.  Cir.  Rep.  371.  A  State,  under  its  general  and  admitted 
power  to  define  and  punish  offences  against  its  own  peace  and  policy, 
may  repel  from  its  borders  an  unacceptable  population,  whether  pau-^ 
pers,  criminals,  fugitives,  or  liberated  slaves,  and,  consequently,  may 
punish  its  citizens,  or  others  who  thwart  this  policy,  by  harboring, 
secreting,  or  in  any  way  assisting  such  persons  ;  and  it  is  no  objection 
to  such  legislation  that  the  oflender  is  liable  to  punishment  under  the 
law  of  Congress,  for  the  same  acts,  when  injurious  to  the  owner  of  a 
fugitive  slave.     14  Howard,  13. 

2  See  note,  p.  258. 


280  LECTURES   ON 

to  pay  for  a  license  from  a  State  Government  in  order 
to  entitle  them  to  pursue  that  branch  of  mercantile 
business,  were  declared  repugnant  to  the  Constitution 
were  held  to  apply  equally  to  a  similar  interference 
with  importations  from  one  State  into  another.  In 
that  case,  although  the  power  of  the  State  to  regulate 
its  purely  internal  commerce,  and  to  establish  its  own 
police  to  control  and  promote  that  trade  and  intercourse, 
and  to  guard  the  public  health  and  safety,  was  held  to 
be  sacred  ;  yet  it  was  by  no  means  admitted  that  these, 
or  any  other  acknowledged  State  powers,  could,  con- 
sistently with  the  Federal  Constitution,  be  so  used  as 
to  obstruct  or  defeat  the  power  of  Congress  to  regulate 
commerce  in  any  of  its  branches.  But  it  was  again 
explicitly  declared  that,  whenever  the  powers  remaining 
in  the  States  are  so  exercised  as  to  come  into  conflict 
with  those  vested  in  Congress,  the  former  must  yield  to 
what  the  Constitution  has  ordained  to  be  the  supreme 
law  of  the  land.^  Nevertheless,  if  measures  undoubt- 
edly within  the  powers  of  the  States  do  not  come  into 
actual  collision  with  those  of  the  General  Government, 
the  Federal  Courts  can  take  no  cognizance  of  them  or 
their  effects.^ 


1  The  Statutes  of  New  York  and  Massachusetts,  imposing  taxes 
upon  alien  passengers  arriving  at  their  ports,  have  been  declared  by 
the  Supreme  Court  to  be  contrary  to  the  Constitution  and  laws  of  the 
United  States,  and  therefore  null  and  void.  6  Howard,  283.  But  a 
State  has  a  right  to  tax  its  own  citizens  for  the  prosecution  of  any 
particular  business  or  profession  within  the  State.  8  Howard,  93. 
Nor  is  a  State  law,  imposing  a  tax  upon  inheritance  and  successions 
to  property,  by  foreigners,  not  domiciliated  therein,  repugnant  to  the 
Constitution  of  the  United  States.    Ibid.  490. 

2  2  Peters,  250. 


CONSTITUTIONAL  JURISPRUDENCE.  281 

With  respect  to  commerce  with  the  Indian  tribes,  we 
are  to  adopt  the  same  broad  interpretation  of  the  power 
of  Congress.  Under  the  Confederation,  this  power  was 
restrained  to  Indians  imt  mem,bers  of  any  of  the  States ; 
and  was  not  to  violate  or  infringe  the  Legislative  right 
of  any  State  within  its  own  limits.  But  what  descrip- 
tion of  Indians  were  to  be  deemed  members  of  a  State, 
was  a  question  of  perplexity  and  contention  in  the 
Federal  councils,  and  was  never  settled ;  and  how  the 
trade  with  the  Indians  not  members  of  a  State,  yet 
residing  within  its  Legislative  jurisdiction,  could  be 
regulated  by  Congress  without  intruding  upon  the  right 
of  internal  legislation,  seems  to  have  been  considered 
incomprehensible  by  that  compact.  The  power  in  ques- 
tion was,  therefore,  very  properly,  unfettered  by  the  new 
Constitution  from  limitations  which  rendered  the  former 
provision  so  obscure  and  contradictory.  As  it  now 
stands,  it  is  applicable  to  all  the  Indian  tribes ;  and  it 
is  immaterial  whether  they  continue  within  the  bounda- 
ries of  a  State,  or  inhabit  a  part  of  one  of  the  Terri- 
tories, or  roam  at  large  through  regions  over  which 
the  United  States  have  no  jurisdiction  ;  the  trade  with 
them  is,  in  all  its  forms,  subject  exclusively  to  the  regu- 
lation of  Congress.  By  the  wisdom  and  benevolence 
of  this  provision,  the  Indians  are  no  longer  distracted 
by  the  discordant  regulations  of  different  sovereignties, 
but  are  taught  to  trust  to  one  supreme  head,  whose 
justice  they  should  ever  have  as  much  reason  to  respect, 
as  cause  to  fear  its  power. 

The  relation  of  the  aborigines  to  the  Government  of 
the  United  States  is  marked  by  peculiar  and  cardinal 
distinctions.     The  Indian  territory  is  admitted  to  com- 
24* 


282  LECTURES   ON 

pose  a  part  of  the  Federal  domain ;  in  all  our  maps, 
geographical  treatises,  histories,  and  laws,  it  is  so  con- 
sidered :  in  all  our  intercourse  with  foreign  nations ;  in 
our  commercial  regulations;  in  any  attempt  at  inter- 
course between  the  Indians  and  foreign  powers,  they 
are  considered  as  within  the  jurisdictional  limits  of  the 
United  States,  subject  to  many  of  those  restraints 
which  are  imposed  on  our  own  citizens.  They  ac- 
knowledge themselves  in  their  treaties  to  be  under  the 
protection  of  the  Federal  Government ;  they  admit  that 
it  shall  have  the  sole  and  exclusive  right  of  regulating 
the  trade  with  them,  and  managing  all  their  affairs 
as  it  may  think  proper.  In  the  particular  instance  of 
the  Cherokees,  they  were  allowed  by  a  treaty,  which 
preceded  the  present  Constitution,  "  to  send  a  deputy 
of  their  choice,  whenever  they  saw  fit,  to  Congress ; " 
and,  under  the  unsettled  construction  of  the  Articles  of 
Confederation,  treaties  were  made  with  some  tribes  by 
the  State  of  New  York,  by  which  they  ceded  all  then- 
unsettled  lands  within  that  State,  taking  back  a  limited 
grant  to  themselves,  in  which  they  admit  their  depend- 
ence on  that  State. 

As  to  those  tribes  which  reside  within  the  acknowl- 
edged boundaries  of  the  Union,  we  have  seen  that  they 
are  not  deemed  foreign  nations  within  the  meaning  of 
the  Constitution,  but  are  considered  as  domestic,  depend- 
ent nations ;  they  occupy  a  territory  to  which  we  assert 
a  title  which  must  take  effect  when  their  right  of  occu- 
pancy ceases ;  and,  in  the  mean  time,  they  are  in  a 
state  of  pupilage  to  the  Federal  Government.  They 
and  their  country  are  considered  by  foreign  nations,  as 
well  as  ourselves,  as  being  so  completely  under  the 
sovereignty  and  dominion  of  the   United  States  that 


CONSTITUTIONAL  JURISPRUDENCE.  283 

any  attempt  to  acquire  their  lands,  or  form  a  political 
connection  with  them,  would  be  considered  as  a  hostile 
invasion  of  our  territory.  They  are  distinguished  in 
the  Constitution,  by  an  appropriate  name,  from  foreign 
nations,  as  well  as  from  the  several  States  of  the  Union ; 
and  the  objects  to  which  the  power  now  under  consid- 
eration may  be  directed,  are  divided  into  distinct  classes 
corresponding  with  that  distinction.  A  brief  reference 
to  the  origin  of  these  discriminations  will  explain  the 
principles  on  which  they  are  founded,  and  enable  us  to 
determine  with  greater  accuracy  the  nature  and  char- 
acter of  the  subsisting  relations  between  the  United 
States  and  the  Indian  tribes. 

When  the  great  maritime  powers  of  Europe  visited 
and  discovered  different  parts  of  this  continent  at  nearly 
the  same  time,  the  principle  adopted  for  deciding  their 
respective  rights  was,  "  that  discovery  gave  title  to  the 
Government  by  whose  subjects  or  by  whose  authority 
it  was  made,  against  all  other  European  Governments, 
which  title  might  be  consummated  by  possession. "  ^ 
The  admission  of  this  principle  gave  to  the  nation  mak- 
ing a  discovery,  as  an  inevitable  consequence,  the  sole 
right  of  acquiring  the  soil  and  of  making  settlements 
upon  it ;  and  while  the  principle  itself  was,  as  to  them, 
an  exclusive  one,  and  shut  out  the  right  of  competition 
among  those  who  agreed  to  it,  it  could  not  annul 
the  previously  acquired  rights  of  those  who  had  never 
adopted  or  acknowledged  it.  It  regulated  the  right 
given  by  discovery  among  the  European  claimants,  but 
could  not  affect  the  rights  of  those  already  in  possession, 
either  as  original  occupants,  or  as  occupants  by  virtue 

1  8  Wheat.  573. 


284  LECTURES   ON 

of  a  discovery  beyond  the  memory  of  man.  It  gave 
an  exclusive  right  to  purchase,  but  did  not  found  that 
right  on  a  denial  of  the  right  of  the  occupant  to  sell. 

The  relation  between  the  Europeans  and  the  natives 
was  determined  in  each  case  by  the  particular  Gov- 
ernment which  asserted,  and  could  maintain,  this  pre- 
emptive privilege  in  the  particular  place.  The  United 
States  succeeded  to  all  the  claims  of  Great  Britain, 
both  territorial  and  political ;  but  no  attempt,  so  far  as 
is  known,  has  been  hitherto  made  to  enlarge  them.  So 
far  as  they  existed  merely  in  theory,  or  were,  in  their 
nature,  exclusive  only  of  the  claims  of  other  civilized 
nations,  they  still  retain  their  original  character,  and 
continue  dormant.  But  so  far  as  they  have  been  prac- 
tically exerted,  they  exist  in  fact ;  they  are  well  under- 
stood by  both  parties ;  have  been  asserted  by  the  one 
and  admitted  by  the  other.  When  the  war  of  the 
Revolution  commenced,  so  far  from  advancing  a  claim 
to  their  lands,  or  asserting  any  right  of  dominion  over 
their  persons.  Congress  resolved  "  that  the  securing  and 
preserving  the  friendship  of  the  Indian  nations  was  a 
subject  of  the  utmost  moment"  Commissioners  were 
appointed  "  to  treat  with  the  Indians,  in  the  name  and 
on  the  behalf  of  the  United  Colonies,  in  order  to  pre- 
serve their  peace  and  friendship ; "  and  the  most  stren- 
uous exertions  were  made  to  procure  those  articles  on 
which  Indian  friendships  w^ere  supposed  to  depend  ; 
and,  in  short,  every  thing  was  done  to  promote  trade 
and  avoid  hostilities  with  them. 

The  general  law  of  European  sovereigns,  respecting 
their  claims  in  America,  limited  the  intercourse  of  indi- 
viduals, in  a  great  degree,  to  the  particular  potentate 
whose  ultimate  right  of  domain  was  acknowledged  by 


CONSTITUTIONAL  JURISPRUDENCE.  285 

the  others.  The  consequence  was,  that  their  supplies 
were  derived  chiefly  from  that  nation,  and  their  trade 
confined  to  it.  Goods  indispensable  to  their  comfort, 
in  the  shape  of  presents,  were  received  from  the  same 
hand  ;  and,  what  was  of  still  more  importance,  the 
strong  arm  of  Government  was  interposed  to  restrain 
the  disorderly  and  licentious  from  intrusions  into  their 
country,  encroachments  on  their  lands,  and  from  those 
acts  of  violence  which  were  often  attended  by  reciprocal 
bloodshed  and  slaughter.  The  Indians  perceived,  in 
this  protection,  only  what  was  beneficial  to  themselves. 
It  involved,  practically,  no  claim  upon  their  lands ;  no 
dominion  over  their  persons ;  but  merely  bound  them 
to  the  British  Crown  before  the  Revolution,  and  to  the 
United  States  afterwards,  as  dependent  allies,  claiming 
the  protection  of  a  powerful  friend  and  neighbor,  and 
receiving  the  advantages  of  that  protection,  without 
involving  a  surrender  of  their  national  character. 

From  the  commencement  of  the  Government,  Con- 
gress has,  from  time  to  time,  passed  laws  to  regulate 
trade  and  intercourse  with  the  Indian  tribes,  which  treat 
them  as  nations,  respect  their  rights,  and  manifest  a  firm 
purpose  to  afford  that  protection  to  them  which  treaties 
stipulate.  All  these  Acts,  and  especially  the  law  now 
in  force,  obviously  consider  the  several  Indian  nations  as 
distinct  political  communities,  having  territorial  bound- 
aries, within  which  their  authority  is  exclusive.  The 
treaties  and  laws  of  the  United  States  contemplate  the 
Indian  territory  as  completely  separated  from  that  of 
the  States,  and  provides  that  all  intercourse  with  them 
shall  be  carried  on  exclusively  by  the  Government  of 
the  United  States ;  while  the  powers  to  regulate  com- 
merce, declare  war,  make  peace,  and  conclude  treaties, 


286  LECTURES   ON 

comprises  all  that  is  required  for  regulating  our  inter- 
course with  the  Indian  tribes. 

II.  TIte  power  to  establish  post-offices  and  post-roads  is 
necessarily  connected  with  the  regulation  of  commerce 
and  the  promotion  of  the  general  welfare.  A  regular 
system  of  free  and  speedy  communication  is  not  only 
of  vital  importance  to  the  mercantile  interests  of  the 
country,  but,  on  a  more  enlarged  view  of  the  subject, 
must  be  admitted  to  be  of  great  general  benefit.  In 
time  of  peace,  it  facilitates  and  promotes  commercial 
intercourse,  tends  to  keep  the  people  informed  of  their 
political  interests,  assists  the  measures  of  Government 
and  the  private  communications  between  individuals. 
In  war,  the  rapid  transmission  of  intelligence  by  means 
of  the  public  mails,  and  the  greater  facility  of  transfer- 
ring bodies  of  troops,  and  transporting  military  stores, 
by  means  of  good  and  substantial  roads,  are  advantages 
as  evident  as  they  are  desirable. 

If  the  establishment  of  post-offices  and  post-roads 
should  in  practice  be  productive  of  no  revenue  to  the 
public,  the  expense  would  be  properly  chargeable  on 
the  general  funds  of  the  Union,  and  the  proceeds  of 
taxation  in  the  common  forms  be  justly  applied  to  de- 
fray it.  If,  however,  as  has  proved  to  be  the  case,  the 
post-office  establishment  should  continue  to  yield  a 
revenue,  which,  in  common  with  the  other  funds  of  the 
Union,  is  applicable  only  to  the  purposes  of  the  Gen- 
eral Government,  it  is  obvious  that  no  State  should  be 
permitted  to  interfere  by  establishing  a  post-office  de- 
partment of  its  own.  The  power,  therefore,  vested  in 
Congress  is  exclusive,  so  far  as  relates  to  the  convey- 
ance of  letters,  and  other  articles  transmissible  by  post. 
In  regard  to  post-roads,  it  would  be  unnecessary,  and 


CONSTITUTIONAL  JURISPRUDENCE.  287 

therefore  unwarrantable,  in  Congress,  to  make  another 
road  where  a  sufficient  one  aheady  exists ;  while,  on 
the  other  hand,  no  State  has  power  to  deny  or  obstruct 
the  passage  of  the  mails,  the  marching  of  troops,  or  the 
transportation  of  the  property  of  the  United  States 
over  its  public  roads. 

The  power  of  Congress  in  relation  to  the  subject 
was  brought  into  operation  soon  after  the  adoption  of 
the  Constitution,  and  various  provisions  respecting  it 
have  since,  at  different  times,  been  enacted,  aU  founded 
on  the  principle  of  its  being  exclusive,  so  far  as  it  re- 
spects the  establishment  of  post-roads,  and  the  convey- 
ance of  letters  and  other  articles  by  post.  Under  this 
power,  in  conjunction  with  the  powers  of  Congress  to 
raise  money  to  provide  for  the  general  welfare,  and  to 
pass  all  laws  necessary  and  proper  to  carry  into  execu- 
tion the  other  powers  vested  in  the  General  Govern- 
ment, Congress  has  from  time  to  time  set  apart  funds 
for  internal  improvements^  in  the  several  States,  by 
means  of  roads  and  canals.  This  power  has  been 
exercised  for  a  long  series  of  years  ;  and  although  often 
questioned  and  denied,  is  vindicated  by  precedent. 
The  practice  has  been  to  allow  to  the  new  States,  on 
their  admission  into  the  Union,  a  certain  proportion  of 
the  proceeds  arising  from  the  sale  of  the  public  lands 
therein,  to  be  laid  out  in  the  construction  of  roads  and 
canals  within  those  States,  or  leading  thereto.  In  the 
year  1806,  Congress  authorized  a  road  to  be  opened 
from  Nashville,  in  Tennessee,  to  Natchez,  in  the  then 
Mississippi  Territory,  without  asking  the  consent  of  the 
State  of  Tennessee ;  and  in  1809,  the  President  was 
authorized  to  cause  the  canal  De  Carondelet,  leading 
from  the  Lake  Ponchartrain  to  the  city  of  New  Orleans, 


288  LECTURES   ON 

to  be  extended  to  the  River  Mississippi.  The  bill  au- 
thorizing the  former  of  these  works  was  objected  to  by 
Mr.  Jefferson,  but  was,  upon  reconsideration,  passed, 
notwithstanding  his  objections,  by  the  constitutional 
majority  of  two  thirds  of  the  members  present  in  both 
houses  of  Congress ;  while  the  bill  authorizing  the  latter 
was  not  objected  to,  though  passed  under  the  same 
administration,  from  the  circumstance,  it  may  be  pre- 
sumed, that  the  improvement  it  contemplated  was 
wholly  within  a  Territory  of  the  United  States. 

The  Cumberland  Road,  upon  which  so  much  has 
been  said  in  and  out  of  Congress,  and  so  much  public 
money  has  been  expended,  w^as  first  authorized  by  an 
Act  of  Congress,  passed  also  in  1806,  and  was  con- 
structed under  a  covenant  with  the  State  of  Ohio,  that 
a  portion  of  the  proceeds  of  the  public  lands  lying 
within  that  State  should  be  applied  to  the  opening 
of  roads  leading  to  it,  with  the  consent  of  the  States 
through  which  the  road  might  pass.  But  the  expendi- 
tures upon  it  having  exceeded  the  proceeds  of  the  lands 
appropriated  for  its  construction.  President  Madison,  in 
1816,  objected  to  a  bill  appropriating  a  fund,  of  which 
a  portion  would  have  been  available  for  continuing  it, 
on  the  ground  that  the  Constitution  did  not  extend  to 
making  roads  and  canals,  and  improving  water-courses 
through  the  different  States  ;  and  that  the  assent  of 
those  States  could  not  confer  the  power.  Afterward, 
in  1822,  President  Monroe  objected  to  a  bill  appropri- 
ating money  for  repairing  the  Cumberland  Road,  and 
establishing  gates  and  tolls  upon  it,  on  similar  grounds ; 
and  in  both  instances  the  bills  were  eventually  lost. 

On  these  and  other  similar  occasions,  there  was, 
however,  a  decided  difference  of  opinion  between  the 


CONSTITUTIONAL  JURISPRUDENCE.  289 

majority  of  Congress  and  the  President.  Mr.  Jefferson, 
in  1806,  Mr.  Madison,  in  1816,  and  Mr.  Monroe  in 
1822,  denied  any  such  power  in  Congress  as  these  bills 
assumed  to  exist;  or  that  it  could  be  vested  in  that 
body,  either  by  the  consent  of  the  States  to  the  works 
proposed,  or  in  any  other  mode  than  an  amendment  of 
the  Federal  Constitution.  On  the  other  hand,  it  ap- 
pears that  Congress  claims  the  power  to  lay  out,  con- 
struct, and  improve  post-roads  and  military  roads,  at  all 
events  with  the  assent  of  the  States  through  which  they 
pass,  as  well  as  to  cut  canals  for  promoting  internal  com- 
merce, and  the  more  safe  and  economical  transportation 
of  military  stores  in  time  of  war,  leaving,  in  all  these 
cases,  the  jurisdictional  right  over  the  soil  in  the  respec- 
tive States.  By  an  Act  passed  in  1824,  with  the  assent 
of  Mr.  Monroe,  the  necessary  surveys,  plans,  and  esti- 
mates were  directed  to  be  made  of  such  roads  and 
canals  as  the  President  might  deem  of  material  impor- 
tance in  a  commercial  or  military  point  of  view,  or 
necessary  for  the  transportation  of  the  pubKc  mail,  and 
appropriated  a  sum  of  money  for  the  purpose. 

The  younger  President  Adams,  in  his  inaugural  ad- 
dress in  1825,  alluded  to  this  question ;  and  his  opinion 
seemed  to  be  in  favor  of  the  right,  as  well  as  the  policy, 
of  a  liberal  application  of  the  national  resources  to  the 
internal  improvement  of  the  country.  He  intimated 
that  speculative  scruples  on  the  subject  would  probably 
be  solved  by  the  practical  blessings  resulting  from  the 
application  of  the  power.  But  in  the  year  1836,  this 
subject  was  again  discussed  in  Congress,  and  a  bill 
passed  both  houses,  appropriating  a  sum  of  money 
for  a  subscription  to  the  stock  of  a  turnpike  road,  ex- 
clusively within  the  State  of  Kentucky,  but  leading 
25 


290  LECTURES  ON 

from  Maysville,  in  the  interior  of  that  State,  to  the 
River  Ohio.  This  bill  was  returned  by  President  Jack- 
son, and,  on  the  question  of  its  passage,  notwithstand- 
ing the  objections  of  the  President,  was  finally  lost  in 
the  House  of  Representatives,  in  which  it  had  origi- 
nated. In  his  annual  message  at  the  commencement  of 
the  session,  the  President  had  adverted  to  the  difficulties 
which  had  before  attended  appropriations  for  purposes 
of  internal  improvement,  and  expressed  a  hope  that 
some  plan  might  be  devised  to  attain  its  benefits  in 
a  satisfactory  manner.  He  observed,  that  the  mode 
adopted  on  former  occasions  had  been  deprecated  by 
many  as  an  infraction  of  the  Constitution,  whUe  it  had 
been  viewed  by  others  as  inexpedient,  and  that  all  felt 
that  it  had  been  employed  at  the  expense  of  harmony 
in  the  public  councils.  Upon  returning  the  bill  relative 
to  the  Maysville  Road,  he  referred  to  the  sentiments  he 
had  expressed  at  the  opening  of  the  session,  and  pro- 
ceeded to  consider  the  constitutional  power  of  the 
Greneral  Government  to  construct  or  promote  works  of 
internal  improvement,  as  then  presenting  itself,  in  two 
points  of  view ;  first,  as  bearing  on  the  sovereignty  of 
the  States  within  whose  limits  the  execution  was  con- 
templated, if  jurisdiction  of  the  territory  they  occupy 
were  claimed  as  necessary  to  their  preservation  and 
use  ;  the  second,  as  asserting  the  simple  right  to  appro- 
priate money  firom  the  National  Treasury  in  aid  of 
such  works  when  undertaken  by  State  authority,  sur- 
rendering the  claim  of  jurisdiction  on  the  part  of  the 
United  States.^ 

In  the  first  view,  he  regarded  the  question  of  power 
as  an  open  one,  which  could  be  decided  without  the 

1  Vide  ante,  p.  287. 


CONSTITUTIONAL  JURISPRUDENCE.  291 

embarrassments  attending  the  other,  arising  from  the 
practice  of  the  Government.  To  the  extent  contem- 
plated by  this  first  view  of  the  power,  he  asserted  that, 
although  frequently  and  strenuously  attempted,  it  had 
never  been  attained  in  a  single  instance.  The  Govern- 
ment, he  insisted,  did  not  possess  it ;  and  he  therefore 
declared  that  no  bill  admitting  it  would  receive  his 
official  sanction.  But  in  the  other  view  of  the  power, 
he  considered  the  question  differently  situated,  and 
remarked,  that  the  ground  taken  at  an  early  period  of 
the  Government  was,  that  whenever  money  raised  by 
the  general  authority  was  proposed  to  be  applied  to 
a  particular  measure,  a  question  arose  whether  that 
measure  w^as  within  the  enumerated  authorities  vested 
in  Congress.  If  it  were,  the  money  requisite  might  be 
applied  to  it.  If  it  were  not,  no  such  application  could 
be  made.  In  all  cases,  he  averred,  in  which  the  power 
to  apply  money  had,  in  fact,  been  exercised  by  the 
General  Government,  such  grants  had  always  been 
professedly  under  the  control  of  the  general  principle, 
that  the  works  thus  aided  should  be  of  a  general,  not 
local ;  of  a  National,  not  of  a  State  character.  This 
distinction  he  considered  sufficiently  definite  and  im- 
perative to  forbid  his  approbation  of  a  bill  of  the  char- 
acter of  that  in  question,  which  he  was  not  able  to 
view  in  any  other  light  than  as  a  measure  purely  local. 
As  to  the  principle,  indeed,  he  was  indubitably  right, 
but  he  was  wrong  in  its  application ;  for,  most  assuredly, 
a  road  terminating  on  the  very  river  which  forms  the 
great  line  of  communication  between  the  Western  and 
the  Atlantic  States,  must  be  considered  of  infinitely 
more  importance  in  its  general  and  National,  than  in 
its  local  and  State  character.     The  true  rule  on  the 


292  LECTTIRES   ON 

subject,  which  seems  to  have  been  forgotten  or  disre- 
garded on  this  occasion,  had  been  laid  down  by  Chief 
Justice  Marshall  long  before,  and  is  this  :  "  That  the 
action  of  the  General  Government  should  be  applied 
to  all  the  external  concerns  of  the  nation,  and  to  those 
internal  concerns  which  affect  the  States  generally,  but 
not  to  those  which  are  completely  within  a  particular 
State,  which  do  not  affect  other  States,  and  with  which 
it  is  not  necessary  to  interfere  for  the  purpose  of  exe- 
cuting any  of  the  general  powers  of  the  Government."  ^ 

III.  The  powers  to  coin  money,  to  regulate  its  value, 
and  that  of  foreign  coins,  and  to  fix  the  standard  of 
weights  and  measures,  were  possessed  by  the  old  Con- 
gress, with  the  exception  of  that  relating  to  foreign 
coins.  The  new  Constitution,  therefore,  supplied  a 
material  omission  in  the  Articles  of  Confederation,  by 
which  the  power  of  Congress  was  restrained  to  coin 
struck  by  its  own  authority,  or  that  of  the  respective 
States.  It  must  be  obvious  that  the  proposed  uni- 
formity in  the  value  of  the  current  coin  might  be  de- 
stroyed by  subjecting  the  foreign  coin  to  the  different 
regulations  of  the  several  States.  The  power  with  re- 
spect to  the  coin,  both  domestic  and  foreign,  is  rendered 
exclusive,  by  a  subsequent  provision  of  the  Constitu- 
tion, prohibiting  the  individual  States  from  its  exercise. 
And  the  power  of  fixing  the  standard  of  weights  and 
measures  seems  also  proper  to  be  exclusively  exercised 
by  Congress ;  but  until  it  shall  legislate  on  the  subject, 
each  State,  it  is  presumed,  retains  the  right  of  adopting 
and  regulating  its  own  standard. 

Nor  does  the  power  relative  to  the  coin,  prohibit  the 

1  10  Wheat.  446. 


CONSTITUTIONAL  JURISPRUDENCE.  293 

States,  as  we  have  seen,  from  enacting  laws  to  punish 
the  circulating  of  false  coins.  The  offences  of  counter- 
feiting or  debasing  the  coin,  are  entirely  distinct.  The 
former  is  a  crime  directly  against  the  Government,  by 
which  individuals  may  be  affected  ;  the  latter  is  a 
private  wrong,  by  which  Government  may  be  reached 
remotely,  if  at  all.  This  distinction  is  recognized  in  the 
criminal  law  of  England,  where  counterfeiting  coin  is 
made  high  treason, — whether  it  be  uttered  or  not, —  but 
those  who  barely  utter  false  money,  are  guilty  neither  of 
treason,  nor  misprision  of  treason.^  Congress,  neverthe- 
less, under  the  power  to  regulate  the  value  of  foreign 
coins,  can  protect  the  creature  and  object  of  that  power, 
and  the  Act  passed  for  the  punishment  of  persons  bring- 
ing into  the  United  States,  with  intent  to  pass,  any  false, 
forged,  or  counterfeited  coins,  or  knowingly  utter  the 
same,  was  warranted  by  the  Constitution.^ 

IV.  The  power  of  providing"  for  the  punishment  of 
counterfeiting-  the  public  securities  and  current  coin  of 
the  United  States  is  incidental  to  the  foregoing  powers 
relative  to  the  coin,  and  in  itself  seems  to  purport  the 
exclusion  of  State  power,  as  it  is  an  appropriate  means 
for  carrying  into  effect  other  delegated  powers  not  ante- 
cedently existing  in  the  States.  It  appears,  neverthe- 
less, by  the  Acts  of  Congress  relative  to  this  subject, 
that  cognizance  of  such  cases  may,  under  certain  cir- 
cumstances, be  concurrently  exercised  by  the  State 
Courts.  The  Judiciary  Act  of  1789,  vested,  as  we  have 
seen,  in  the  Federal  Courts,  exclusive  jurisdiction  of  all 
offences  cognizable  under  the  authority  of  the  United 
States,  unless  where  their  laws  should  otherwise  direct.^ 

'  5  Howard,  410.  ^  9  j^^^  550. 

3  9  Wheat.  26 ;  11  Johns.  Rep.  549. 

25* 


294  LECTURES   ON 

The  States,  therefore,  could  not  exercise  a  concurrent 
jurisdiction  in  those  cases  without  coming  into  direct 
collision  with  the  laws  of  Congress.  But  by  a  proviso 
in  a  subsequent  Act  concerning  counterfeiters  of  the 
current  coins  of  the  United  States,  Congress  has  de- 
clared that  the  jurisdiction  of  the  Federal  Courts,  in 
certain  specified  cases,  should  not  be  exclusive  ;  so  that 
the  concurrent  jurisdiction  of  the  State  Courts  is  re- 
stored, so  far  as  it  can  be  exercised  under  State  authority. 
There  are,  besides,  other  Acts  of  Congress  which  permit 
jurisdiction  over  the  offences  described  in  them  to  be 
exercised  by  the  State  Courts  under  the  same  condition, 
and  in  all  these  cases  where  the  jurisdiction  of  the 
State  Courts  is  made  concurrent  ■lA'ith  that  of  the  Fed- 
eral Courts,  the  sentences  of  the  one,  whether  of  ac- 
quittal or  conviction,  are  a  bar  to  the  prosecution  in  the 
other,  for  the  same  offence. 

V.  Tlie  power  to  prescribe  by  general  laws  the  manner 
in  which  the  public  acts,  records,  and  Judicial  proceedings 
of  each  State  shall  be  proved,  and  the  effect  they  shall 
have  in  other  States,  is  referred  to  this  class  by  the 
authors  of  "  The  Federalist."  It  is  an  evident  and 
valuable  improvement  on  the  provision  relating  to  the 
same  subject  in  the  Articles  of  Confederation,  of  which 
the  meaning  was  so  indeterminate  as  to  render  it  of 
little  practical  importance.  The  power,  as  it  now 
stands,  has  been  found,  as  was  intended,  to  be  a  con- 
venient instrument  of  justice,  and  particularly  beneficial 
on  the  borders  of  contiguous  States,  where  persons  and 
effects  liable  to  Judicial  process  may  be  suddenly  and 
secretly  withdrawn  to  a  foreign  jurisdiction. 

The  clause  in  the  Constitution  which  vests  this  power 
in  Congress,  previously  declares  that  "full  faith  and 


CONSTITUTIONAL  JUEISPRUDENCE.  295 

credit  shall  be  given  in  each  State  to  the  public  Acts, 
Records,  and  Judicial  proceedings  of  every  other  State." 
And  the  Act  passed  by  Congress  in  execution  of  this 
power,  prescribes  the  manner  of  authenticating  such 
acts,  records,  and  proceedings ;  and  declares  that,  when 
so  authenticated,  they  "  shall  have  such  faith  and  credit 
given  to  them  in  every  Court  within  the  United  States, 
as  they  have  by  law  or  usage  in  the  Courts  of  the  State 
from  whence  they  are  taken."  ^ 

Under  the  clause  of  the  Constitution,  and  this  Legis- 
lative provision  for  giving  it  effect,  if  a  judgment  have 
the  effect  of  record  evidence,  or,  in  other  words,  be 
conclusive  evidence,  i.  e.  admitting  neither  of  impeach- 
ment nor  contradiction  in  the  Courts  of  the  State  in 
which  it  was  rendered,  it  has  the  same  effect  in  the 
Courts  of  all  the  other  States.^  And  the  Supreme 
Court  of  the  United  States,  in  so  ruling,  declared  that 
the  Common  Law  gives  to  a  judgment  of  the  Courts 
of  one  State  the  effect  of  primd  facie  evidence,  *.  e. 
evidence  open  to  impeachment,  explanation,  or  contra- 
diction, in  the  Courts  of  every  other  State;  but  that 
the  Constitution  contemplates  a  power  in  Congress  to 
give  a  conclusive  effect  to  such  judgments,  which  power 
it  has  exercised  by  rendering  a  judgment  conclusive 
when  the  Courts  of  the  particular  State  would  pro- 
nounce the  same  decision.^  And  in  a  recent  case,  it 
was  declared  that  fhe  clause  in  question  cannot,  by  any 
just  construction  of  its  words,  be  held  to  embrace  an 
alleged  error  in  a  decree  of  a  State  Court,  asserted  to 
be  in  collision  with  a  prior  decision  of  the  same  case.* 

1  Const.  U.  S.,  Art.  IV.  Sect.  i.  3  7  Cranch,  481. 

2  Laws  U.  S.  1790,  ch.  38.  *  3  Wheat.  234. 


296  LECTURES   ON 

Nor  did  Congress  intend  by  this  Act  to  declare  that  a 
judgment  rendered  in  one  State,  against  the  person  of 
a  citizen  of  another,  who  had  not  been  served  with 
process,  or  voluntarily  made  defence,  should  have  such 
faith  and  credit  in  every  other  State,  as  it  had  in  the 
Courts  of  the  State  in  which  it  was  rendered.* 

VI.  The  power  "  to  establish  a  uniform  system  of 
naturalization,^^  which  was  the  next  we  proposed  to 
examine,  is  necessarily  exclusive  ;  especially  as  it  is 
provided,  in  a  subsequent  part  of  the  Constitution,  that 
"  the  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several 
States."  2 

The  dissimilarity  of  the  rules  of  naturalization  which 
existed  in  the  different  States,  had  given  rise,  under  the 
Confederation,  to  some  intricate  and  delicate  questions, 
from  the  ambiguous  terms  of  the  article  in  relation  to 
the  subject.  To  put  an  end  to  all  such  questions  in 
future,  the  new  Constitution  authorized  the  General 
Government  to  establish  a  uniform  rule  throughout  the 
United  States.  There  is,  indeed,  no  express  prohibition 
of  State  legislation  in  regard  to  it;  but  if  each  State 
retained  the  power  of  naturalization,  while  the  citizens 
of  each  State  were  entitled  to  the  privileges  of  citizens 
in  the  several  States,  any  one  State  might  impose  on 
all  the  others  such  persons  as  citizens  whom  it  might 
think  proper  to  admit.  In  one  State,  a  short  residence, 
with  a  slight  declaration  of  allegiance,  as  was  the  case 
under  the  first  Constitution  of  Pennsylvania,  might 
confer  the  right  of  citizenship  ;  in  another,  higher  quali- 
fications, as  was,  in  fact,  generally  the  case,  might  be 

1  14  Peters,  481. 

3  2  Wheat.  259 ;  6  Ihid.  49  ;  4  Const.  Ill, 


CONSTITUTIONAL  JURISPRUDENCE.  297 

required ;  and  an  alien,  desirous  of  eluding  the  latter, 
might,  by  complying  with  the  former,  become  a  citizen 
of  a  State  in  opposition  to  its  own  regulations ;  and 
thus  the  laws  of  one  State  might  become  paramount 
in  a  matter  of  vital  consequence  to  another.  Hence  the 
importance  of  rendering  this  power  exclusive.  That  it 
is,  indeed,  so  vested  in  Congress,  was  considered  incon- 
trovertible by  the  Supreme  Court  of  the  United  States, 
in  a  case  in  which  the  decision  depended  on  that 
point  ;^  and  it  was  declared,  subsequently,  to  have  been 
so  held  on  the  ground  of  a  direct  repugnancy  or  incom- 
patibility in  the  exercise  of  a  similar  power  by  the 
States.^ 

No  definition  of  the  character  of  a  citizen  is  con- 
tained in  the  Constitution  of  the  United  States.  The 
term  is  used  with  a  plain  indication  that  its  meaning 
must  have  been  generally  understood,  by  reference  to 
that  system  of  national  jurisprudence  which,  as  I  had 
occasion  to  observe  in  a  former  Lecture,  is  justly  re- 
garded as  the  means  or  instrument  of  exercising  the 
jurisdiction  conferred  by  the  Constitution.  At  the 
time  of  its  adoption,  the  citizens  of  the  several  States 
collectively  constituted  the  citizens  of  the  United  States. 
They  were  either  native  citizens,  or  those  born  within 
the  States,  or  naturalized  citizens,  or  persons  born 
elsewhere,  but  who,  upon  assuming  the  allegiance,  be- 
came entitled  to  the  privileges  of  native  citizens.  All 
who  were  resident  citizens  at  the  time  of  the  Declara- 
tion of  Independence,  and  deliberately  yielded  to  that 
measure  an  express  or  implied  assent,  became  parties 
to  it,  and  are  considered  a^  natives,  their  social  tie 
being  coeval  with  the  nation  itself. 

1  2  Wheat.  269;  2  DalL  370.  2  5  Wheat.  49. 


298  LECTURES   ON 

And  by  the  Constitution  of  the  United  States,  it  is 
declared,  as  we  have  seen,  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  in  the  several  States." '  But  a  limited, 
not  a  full  operation  has  been  given  to  these  words.  It 
has  been  held  in  some  of  the  States,  that  they  do  not 
mean  the  right  of  election,  of  being  elected,  or  holding 
office ;  but  merely  that  the  citizens  of  all  the  States 
shall  have  the  peculiar  advantage  of  acquiring  and 
holding  real,  as  well  as  personal  property,  and  that  such 
property  shall  be  protected  and  secured  by  the  laws  of 
the  State,  in  the  same  manner  as  is  the  property  of  its 
own  citizens,  and  shall  not  be  liable  to  any  taxes  or 
burdens  to  which  the  property  of  the  citizens  of  the 
State  is  subject.^  It  seems,  moreover,  that  no  person 
can  be  deemed  a  citizen  of  a  State,  under  the  Article 
of  the  Federal  Constitution,  who  is  not  entitled,  on  the 
terms  prescribed  by  the  institutions  of  the  State,  to  all 
the  rights  and  privileges  conferred  by  those  institutions 
upon  the  highest  classes  of  society.  Thus,  free  negroes 
and  mulattoes  are  held  not  to  be  such  citizens  as  were 
contemplated  by  the  Article  in  question,  inasmuch  as, 
before  the  adoption  of  the  Constitution  of  the  United 
States,  each  State  had  a  right  to  make  citizens  of  such 
persons  as  it  pleased,  but  as  the  Constitution  does  not 
authorize  any  but  "  white  "  persons  to  become  citizens 
of  the  United  States,  it  creates  a  presumption  that  no 
State  had  made  citizens  of  persons  of  any  other  color  ; 
and  this  presumption  will  stand  until  repelled  by  posi- 
tive testimony.^ 

1  Const.  U.  S.,  Art.  IV.  Sect.  n.  2. 

2  3  Har.  §•  McHen.  554  ;  2  Munf.  396. 

3  1  Ult.  33;  1  Bailey,  215  ;  10  Conn.  340. 


CONSTITUTIONAL  JURISPRUDENCE.  299 

A  citizen  of  the  United  States,  however,  residing  in 
any  State  of  the  Union,  is  a  citizen  of  that  State.i  A 
temporary  absence  will  not  divest  a  person  of  the 
character  of  a  citizen  of  the  State  to  which  he  may 
belong.  There  must  be  a  removal  with  an  intention 
of  laying  aside  that  character,  and  he  must  actually 
join  himself  to  some  other  community .^ 

A  corporation  aggregate  is  not  a  citizen.^  A  cor- 
poration created  by  the  laws  of  one  State,  and  com- 
posed entirely  of  its  own  citizens,  is  not  entitled,  under 
this  Article  of  the  Constitution,  to  all  the  privileges 
and  immunities  of  citizens  of  every  other  State.  Such 
a  construction  would  deprive  a  State   of  all   control 

1  3  Peters,  128 ;  1  Wallace,  51 ;  2  Binn.  120  ;  3  lUd.  75 ;  3  Crunch, 
97;  4  Ibid.  209,  321;  7  Ibid.  603;  1  Wheat.  197;  2  Ibid.  259;  3 
Ibid.  1,  563,  589  ;  4  Ibid.  453,  575  ;  7  Ibid.  535,  545  ;  9  Ibid.  354, 
489;  10  Ibid.  181;  11  Ibid.  332;  1  Johns.  Cas.  29;  2  Ibid.  399;  3 
Ibid.  109;  6  Ibid.  360;  4  Johns.  Rep.  20,  75;  Ibid.  313,  707;  6 
Ibid.  332  ;  7  Ibid.  214  ;  9  Ibid.  303  ;  11  Ibid.  418  ;  1  Const.  Rep.  61, 
111 ;  1  Desauss.  449  ;  3  Ibid.  106  ;  4  Ibid.  330  ;  2  Leigh,  109  ;  2  Dall. 
133;  4  Ibid.  353;  1  Peters,  343;  3  Ibid.  121,  156,  160,  164,  242  ; 
4  Ibid.  393 ;  6  Ibid.  102  ;  7  Ibid.  413  ;  Bee,  25  ;  i^arp.  Eq.  Rep.  5  ; 

1  Mass.  256  ;  2  /6id  179,  note;  Ibid.  226,  note;  Ibid.  236;  7  iJic?. 
523;  9  Ibid.  363,377;  12  /6id  143;  15  Ibid.  354;  ^i%,  407;  1 
Hayw.  338,  485  ;  2  /JiU  37,  104 ;    1  N.  Sj-  M.  292 ;  2  /6iJ.  293,  400; 

2  Dev.  249  ;  3  iiid.  191,  196  ;  4  Mason,  208  ;  1  Brock,  466  ;  1  Har.  Sf 
Gill.  280  ;  1  McCord,  187;  4  Ibid.  552;  2  J?%.  20  ;  Ibid.  150  ;  6 
Afonr.  260;  7 /ftjrf.  143 ;  3  Ca//.  122;  5  76i(/.  364;  6J6trf.  60;  4 
Wend.  507  ;  7  iJiU  333,  367 ;  10  Ibid.  9, 379  ;  12  Ibid.  342  ;  13  Ibid. 
458,  546  ;  9  Hard.  61  ;  Marim  Sf  Yerg.  248  ;  McCord,  Chan.  352,  370; 
1  Zj«.  149 ;  3  Ibid.  375  ;  4  Har.  §•  McHen.  409  ;  3  S/ew.  60  ;  5  Manf. 
117, 160;  1  £aW.  216 ;  1  Rep.  Const.  Ct.  411  ;  4  Conn.  44  ;  4  i3i6&,  90 ; 

3  Serg.  Sf  Rawle,  29  ;  1  OeenZ.  196  ;  3  7iic?.  455  ;  Charlt.  285 ;  1  Miles, 
82 ;  5  Day,  169  ;  2  Pic^.  394  ;  13  Ibid.  345  ;  2  Rand.  276  ;  4  /ftirf.  204. 

2  2  Afun/.  397  ;  3  Wash.  C.  C.  546 ;  I  Litt.  265 ;  3  Marsh.  549. 

3  5  Cranch,  86. 


300  LECTURES   ON 

over  the  extent  of  corporate  franchises  proper  to  be 
granted  within  its  limits.  But,  by  the  comity  of  na- 
tions, a  corporation  created  by  one  Government,  may 
make  a  contract  within  the  domain  of  another;  and 
such  contract  will  be  enforced  in  the  foreign  tribunals.^ 
The  Courts  of  the  United  States  will,  therefore,  pre- 
sume that  a  State  has  adopted  the  comity  of  nations 
towards  other  States  as  part  of  its  jurisprudence.^ 

It  has  been  admitted,  both  in  the  English  Courts  and 
our  own,3  that  all  persons  born  within  the  Colonies 
while  subject  to  the  Crown  of  Great  Britain,  were 
natural-born  subjects ;  but  it  was  held,  as  a  necessary 
consequence,  that  this  character  was  changed  by  the 
separation  of  the  Colonies  from  the  parent  State,  and 
the  acknowledgment  of  their  independence.  The  rule, 
however,  as  to  the  point  of  time  at  which  Americans 
born  before  the  separation  ceased  to  be  British  subjects, 
differs  in  this  country  and  in  England.  The  rule  estab- 
lished by  the  English  Courts  adopts  the  date  of  the 
treaty  of  peace  in  1783 ;  whilst  ours  have  fixed  upon 
that  of  the  Declaration  of  Independence.  But  in  the 
application  of  the  rule  to  different  cases,  some  difference 
of  opinion  may  arise.  The  settled  doctrine  in  this 
country  is,  that  a  person  born  here,  who  left  the  Colonies 
before  the  Declaration  of  Independence,  and  never  re- 
turned, become  thereby  an  alien ;  and,  as  a  general  rule, 
the  character  in  which  Americans  born  before  the  Revo- 
lution are  to  be  regarded,  depends  on  the  situation  of 
the  party,  and  the  election  made  by  him,  at  the  Decla- 
ration of  Independence,  according  to  our  rule,  and  at 

1  5  Cranch,  86.  2  j^d, 

3  3  Peters,  128,  and  cases  above  cited  with  it. 


CONSTITUTIONAL  JURISPRUDENCE.  301 

the  treaty  of  peace,  according  to  the  English.  Difficul- 
ties, however,  have  occurred  where  rights  have  accrued 
between  these  dates.  But,  if  the  right  of  election  be 
admitted  at  all,  it  must  be  determined  by  what  took 
place  during  the  Revolution,  and  between  the  Declara- 
tion of  Independence  and  the  treaty  of  peace. 

The  Declaration  of  Lidependence  did  not  operate  so 
completely  to  separate  the  United  States  from  Great 
Britain,  as  to  subject  all  the  British  ante-nati  to  the 
disability  of  alienage ;  their  rights  continued  until  the 
acknowledgment  of  our  independence  by  Great  Britain.^ 
The  concessions  made  by  the  British  Crown  in  the 
treaty  of  1783,  amounted  to  a  formal  renunciation  of 
all  claim  to  the  allegiance  of  the  citizens  of  the  United 
States ;  but  the  question.  Who  were  citizens  at  that 
period  ?  was  necessarily  left  to  depend  on  the  laws  of 
the  respective  States,  who,  previously  to  the  Federal 
Constitution  had,  in  their  sovereign  capacities,  acted 
authoritatively  of  the  subject.  The  allegiance  formerly 
due  to  the  Sovereign  of  Great  Britain,  was  transferred 
by  the  Revolution  to  the  several  States ;  and  the  treaty 
of  peace  left  their  citizens  in  the  situation  it  found 
them, —  neither  making  those  citizens  who,  by  the  laws 
of  any  State,  had  been  declared  citizens,  nor  releasing 
from  their  allegiance  any  who  had  become,  and  were 
claimed  as  citizens.^ 

Persons  born  in  this  country  who  left  it  before  the 
Declaration  of  Independence,  and  never  returned,  are 
aliens.  So  those  born  here  before  that  event  and  re- 
maining during  infancy  in  a  place  in  this  country  occu- 

1  2  Halst.  305 ;  6  Call.  GO. 

3  4  Crancli,  209  ;  2  Cond.  Rep.  86. 

26 


302  '  LECTURES   ON 

pied  by  the  British  troops,  and  before  attaining  their 
majority,  were  carried  by  loyalist  parents  to  England, 
and  never  returned  to  the  United  States,  must  be  con- 
sidered aliens.  If  such  a  person  were  born  after  the 
Declaration  of  Independence,  and  before  the  British 
troops  took  possession  of  the  place  of  his  residence, 
and  those  adjacent,  infancy  would  have  incapacitated 
him  from  making  any  election  for  himself,  and  his 
election  and  character  would  follow  those  of  his  father, 
subject,  however,  to  the  right  of  disaffirmance  within  a 
reasonable  period  after  the  termination  of  his  minority.^ 
But  the  provisions  of  the  treaty  of  peace  protect  such 
persons,  holding  lands  in  the  United  States,  from  the 
disability  of  alienage  in  regard  to  descents  and  sales.^ 

It  is  a  doctrine  of  the  English  law  that  natural-born 
subjects  owe  an  allegiance  which  is  intrinsic  and  per- 
petual, and  which  cannot  be  diverted  by  any  act  of 
their  own.  But  it  has  been  made  a  question,  frequently 
and  earnestly  debated,  whether  this  doctrine  of  perpet- 
ual allegiance  applies,  in  its  full  extent  to  the  United 
States.^  The  best  writers  on  public  law*  have  treated 
this  subject  rather  loosely,  but  seem,  generally,  to 
favor  the  right  of  the  citizen  to  emigrate  and  aban- 
don his  native  country,  unless  there  be  some  positive 
restraint  by  law,  or  he  is,  at  the  time,  in  possession  of 
some  public  trust,  or  his  country  be  in  distress,  or  at 
war,  and  in   need  of  his  services.     The   principle  de- 

1  3  Peters,  99. 

a  Ibid.  242;  9  Ibid.  642. 

3  7  Wheat.  348  ;  3  Binn.  85  ;  Peters's  Adm.  Cos.  61  ;  3  Peters,  121, 
160  ;  2  Johns.  Cas.  407  ;  2  Cranch,  120  ;  2  Munf.  393  ;  4  Hall's  Am. 
Law  Journ.  361 ;  9  Mass.  461. 

4  Grotius,  h.  2,  ch.  5  ;  Puffend.  b.  8,  ch.  11  ;  Vattell,  b.  1,  ch,  19. 


CONSTITUTIONAL  JURISPRUDENCE.  308 

clared  in  some  of  our  State  Constitutions,  that  the 
citizens  have  a  natural  right  to  emigrate,  goes  far  to- 
wards a  renunciation  of  the  English  law,  as  repugnant 
to  the  natural  liberty  of  mankind — provided  emigration 
is  intended  in  those  cases  to  be  used  as  synonymous 
with  expatriation.  But  the  allegiance  of  our  citizens 
is  due,  not  merely  nor  principally  to  the  local  Govern- 
ment of  the  State  in  which  they  reside,  but  primarily 
and  chiefly  to  the  United  States,  which  Government 
alone  affords  them  national  protection,  and  imparts  to 
them  their  national  character ;  and  the  doctrine  of  final 
and  absolute  expatriation,  though  frequently  discussed 
in  our  Courts,  remains  yet  to  be  settled,  and  requires 
to  be  defined  with  precision,  and  subjected  to  certain 
established  limitations,  before  it  can  be  admitted  into 
our  jurisprudence,  or  laid  down  broadly  as  a  wise  and 
salutary  rule  of  national  policy. 

It  is  not,  however,  applied  by  the  English  Courts  to 
the  American  ante-nati;  as  is  manifest  from  a  ease 
decided  some  years  since  in  the  Court  of  the  King's 
Bench,^  in  which  the  treaty  of  peace  was  considered  as 
a  release  from  their  allegiance  of  all  British  subjects 
who  remained  in  this  country.  The  British  doctrine, 
therefore,  is  that  the  American  ante-naii,  by  remaining 
in  this  country  after  the  peace,  lost  their  character  as 
British  subjects  ;  and  our  doctrine  is,  that  by  withdraw- 
ing from  this  country  they  lost,  or  perhaps,  more  prop- 
erly speaking,  they  never  acquired  the  character  of 
American  citizens. 

All  persons  born  out  of  the  allegiance  and  jurisdic- 
tion of  the   United   States  are  termed  aliens.     There 

1  2  Bam.  Sf  Cress.  779. 


304  LECTURES   ON 

are,  however,  some  exceptions  to  this  rule  derived  from 
the  ancient  English  law ;  as  in  the  case  of  the  children 
of  public  ministers  born  abroad,  for  their  parents  owed 
not  even  a  local  allegiance  to  the  foreign  .power.  So, 
also,  in  every  case,  the  children  born  abroad  of  English 
parents  were  considered  as  natives  of  England  if  the 
father  went  and  continued  abroad  in  the  character  of 
an  Englishman.  By  the  existing  law  of  the  United 
States  relative  to  naturalization,  it  is  declared  that  the 
children  of  persons  who  were  or  had  been  citizens  of 
the  United  States  at  the  time  of  passing  the  Act,  should, 
though  born  out  of  the  United  States,  be  considered 
as  citizens ;  but  that  the  right  of  citizenship  should 
not  descend  to  persons  whose  fathers  had  never  resided 
within  the  United  States.  This  statute  does  not  ex- 
tend to  the  children  of  persons  who  left  the  country 
before  the  Declaration  of  Independence,  and  not  being 
prospective  in  its  operation,  the  benefit  of  it  narrows 
rapidly  by  lapse  of  time,  and  the  period  will  soon 
arrive  when  there  will  be  no  statutory  regulation  in 
favor  of  children  born  abroad  of  American  parents ; 
and,  unless  one  be  made  in  season,  they  will  be  driven 
to  resort  for  aid  to  the  dormant  and  doubtful  principles 
of  the  Common  Law. 

Aliens  coming  to  this  country  with  the  intention  of 
making  it  their  permanent  residence,  have  many  in- 
ducements to  become  citizens.  They  are  incapable, 
until  naturalized,  of  holding  a  stable  interest  in  land 
in  many  of  the  States ;  or  of  holding  any  civil  office ; 
or  of  voting  at  elections  ;  or  of  taking  any  active  share 
in  the  administration  of  the  Federal  or  State  Govern- 
ments. A  convenient  and  easy  mode  (perhaps  too 
easy  and  convenient)  has  been  provided  by  Congress 


CONSTITUTIONAL  JURISPRUDENCE.  305 

for  removing  the  disabilities  of  alienage  ;  and  the  terms 
on  which  every  alien,  being  a  free  white  person,  can 
obtain  the  qualifications  and  privileges  of  a  natural- 
born  citizen,  are  prescribed  in  the  several  Acts  of  Con- 
gress on  the  subject.^  But  an  alien  enemy  cannot  be 
permitted  to  make  the  declaration  required  by  law 
preparatory  to  naturalization.^  And  the  provision  of 
this  Act,  which  excludes  from  citizenship  aliens  whose 
country  shall  at  the  time  of  the  application  be  at  war 
with  the  United  States,  extends  to  the  supplementary 
Act,  authorizing  the  naturalization  of  the  widow  and 
children  of  persons  who,  having  pursued  the  directions 
of  the  original  Act,  died  before  they  became  natural- 
ized. Consequently,  the  minor  son  of  an  alien  who 
had  made  report  of  himself  conformably  to  the  Act, 
but  died  before  he  had  resided  long  enough  to  be  enti- 
tled to  naturalization,  is  held  not  to  be  admissible  to 
the  rights  of  citizenship, — the  country  from  which  he 
emigrated  being,  at  the  time  of  the  son's  application,  at 
war  with  the  United  States.^ 

The  right  of  aliens  to  the  privileges  of  naturalization 
are,  by  these  laws  relating  to  the  subject,  submitted  to 
the  decision  of  any  Court  of  Record  within  the  United 

1  Laws  of  U.  S.  1802,  <;h.  xviii. ;  1813,  ch.  clxxxiv. ;  1816,  ch. 
xxxii. 

2  1  Gall.  11,  contrd;  2  Binn.  218. 

3  5  Binn.  371.  See  also  Peters's  C.  C.  106,  457,  466  ;  1  Dall.  69; 
1  Gallis.  366,  563;  2  Jbid.  105;  1  Wash.  C.  C  484  ;  1  Johns.  Cos. 
206;  10  Johns.  Rep.  69,  117,  183;  11  Ibid.  418;  6  Crunch,  176;  7 
Ibid.  428  ;  9  Ibid.  180  ;  1  Johns.  Ch.  Cos.  399  ;  2  Ibid.  588  ;  1  Black/. 
255  ;  6  Litt.  226  ;  Paine,  68  ;  1  Wheat.  46  ;  Ibid.  128,  note ;  10  Wend. 
379 ;  13  Ibid.  524 ;  16  Ibid.  617,  625  ;  4  Peters,  406  ;  1  McCord,  187 ; 
1  Ibid.  Ch.  370;  1  Hill,  141;  2  Car.  Law  Rep.  112  ;  1  Cowen,  89; 
4  Rand.  585. 

26* 


306  LECTUEES   ON 

States ;  and  a  person  duly  naturalized  (which  he  may 
be  after  a  residence  of  five  years)  becomes  entitled  to 
all  the  privileges  and  immunities  of  a  natural-born 
citizen,  except  that  a  residence  of  seven  years  is  re- 
quired by  the  Constitution  to  enable  him  to  hold  a 
seat  in  the  House  of  Representatives,  of  nine  years  to 
hold  a  seat  in  the  Senate,  and  that  he  remains  always 
ineligible  to  the  offices  of  President  of  the  United 
States  and  Governor  in  several  of  the  States.  The 
policy  of  these  laws  has  been  strongly  doubted  by 
some  of  our  w^isest  and  best  statesmen  and  native 
politicians,  and  every  year's  experience  tends  amply  to 
confirm  those  doubts.  For  a  short  period,  during  the 
administration  of  the  elder  Adams,  the  term  of  resi- 
dence prescribed  by  law  to  entitle  an  alien  to  naturali- 
zation was  fourteen  years.  But  the  passing  of  that  law 
was  one  of  the  most  powerful  causes  of  the  expulsion 
of  IVIr.  Adams  and  the  Federal  party  from  the  adminis- 
tration of  the  General  Government;  and  however  some 
of  his  successors  may  have  regretted  its  repeal,  they 
have  been  too  well  convinced  of  the  difficulty  of  recall- 
ing a  popular  concession  to  attempt  its  reenactment. 
There  are  two  improvements,  however,  that  seem  equally 
practicable  and  desirable,  and  would  go  far  to  remedy 
the  existing  evils  of  the  system  ;  the  one  is,  to  render, 
by  an  amendment  of  the  Constitution,  the  naturalized 
citizen  incapable  of  holding  any  office  of  trust  or  profit ; 
the  second,  to  vest,  by  an  amendment  of  the  statutes, 
the  jurisdiction  in  cases  of  naturalization,  exclusively  in 
the  Federal  Courts. 

VII.  The  power  of  Congress  "to  establish  uniform 
laws  on  the  subject  of  bankruptcies  "  is  intimately  con- 
nected with  the  regulation  of  commerce  ;  and  there  are 


CONSTITUTIONAL  JURISPRUDENCE.  307 

peculiar  reasons  why  the  National  Government  should 
be  intrusted  with  this  power,  arising  from  the  impor- 
tance of  preserving  uniformity  and  equality  of  rights 
among  the  citizens  of  all  the  States,  and  of  maintaining 
commerce,  credit,  and  intercourse  with  foreign  nations. 
It  has  been  found  necessary,  in  Governments  which 
authorize  personal  arrests  and  imprisonment  for  debt, 
to  interpose  and  provide  relief  for  the  debtor  in  cases 
of  inevitable  misfortune ;  and  this  has  been  particularly 
the  case  in  regard  to  insolvent  merchants,  who  are  fre- 
quently tempted,  if  not  obliged,  by  the  habits,  pursuits, 
and  enterprising  nature  of  trade,  to  give  and  receive 
credit,  and  encounter  extraordinary  hazards ;  and,  be- 
sides relieving  the  debtor,  bankrupt  and  insolvent  laws 
are  intended  to  secure  the  application  of  his  effects  to 
the  payment  of  his  debts.  Bankruptcy,  in  the  English 
law,  has  by  long  and  settled  usage  received  an  appro- 
priate meaning ;  and  has  been  considered  applicable  to 
unfortunate  or  fraudulent  traders,  who  do  certain  acts 
affording  evidence  of  their  inability  to  pay  their  debts, 
or  of  their  intention  to  avoid  it.  But  the  line  of  par- 
tition between  bankrupt  and  insolvent  law"S  is  not  so 
distinctly  marked  as  to  enable  laymen,  or  even  lawmen 
to  determine  with  positive  precision  what  belongs  ex- 
clusively to  the  one  or  to  the  other ;  and  it  is  the  more 
difficult  to  discriminate  between  them,  because  bank- 
rupt laws  may,  and  frequently  do,  contain  regulations 
which  are  generally  found  in  insolvent  laws ;  and  in 
insolvent  laws,  some  that  are  common  in  a  bankrupt 
law.  And  although  bankrupt  laws  are  generally  and 
properly  confined  to  the  trading  classes,  who  are  most 
exposed  to  pecuniary  vicissitudes,  yet,  as  misfortune 
and  poverty  may  also  overtake  those  who  pursue  other 


308  LECTUEES   ON 

occupations,  the  latter  ought  not  to  be  excluded  from 
the  humane  protection  of  the  State  Legislatures.  Nor, 
indeed,  should  the  former,  or  their  creditors,  be  left 
without  the  means  of  relief,  in  case  Congress  does 
not  in  its  discretion  think  proper  to  exercise  the  power 
vested  in  them  in  relation  to  bankruptcy.  This  power 
of  Congress  has,  accordingly,  been  held  not  to  exclude 
the  right  of  the  States  to  legislate  on  the  same  subject, 
except  where  the  power  has  been  already  executed  by 
a  subsisting  law  of  Congress  with  which  the  State  law 
would  conflict.^ 

Whenever,  indeed,  the  terms  in  which  a  power  is 
granted  by  the  Constitution,  or  the  nature  and  character 
of  the  power  itself,  require  that  it  should  be  exercised 
exclusively  by  Congress,  the  subject,  as  we  have  already 
seen,  is  as  completely  taken  away  from  the  State  as  if 
its  Legislature  had  been  expressly  forbidden  to  act  on 
it  But  the  power  now  in  question  is  held  not  to  be  of 
this  description ;  and  a  State  has  a  right,  consistently 
with  the  provision  in  the  Federal  Constitution,  to  pass 
bankrupt  and  insolvent  laws,  provided  they  do  not  im- 
pair tlie  obligation  of  contracts^  and  there  be  no  Act  of 
Congress  in  force  with  which  the  State  laws  would 
come  into  collision.  Nor  is  the  right  of  a  State  to 
pass  bankrupt  laws  extinguished  by  the  enactment  of 
a  uniform  law  by  the  Legislature  of  the  Union ;  but 
is  only  suspended  while  the  law  of  Congress  exists, 
and  so  far  only  as  the  State  law  might  be  found  to 

1  4  Wheat.  122;  12  Ibid.  213.  It  was  originally  held  by  Mr.  Jus- 
tice Washington  in  the  Circuit  Court  of  the  United  States  for  Penn- 
sylvania, that  the  exercise  by  a  State  of  the  power  to  pass  a  bankrupt 
law,  was  prohibited  by  the  grant  of  the  power  of  Congress  to  pass 
uniform  bankrupt  laws.     5  Wash.  C.  C.  313. 


CONSTITUTIONAL  JURISPRUDENCE.  309 

conflict  with  it.  While  the  Act  of  Congress  remains 
in  force,  the  power  of  the  State  continues  over  such 
cases  which  the  Act  of  Congress  does  not  embrace. 
Hence  the  power  of  passing  insolvent  laws,  not  coming 
within  the  technical  description  of  bankrupt  laws,  is 
always  in  force ;  and  from  the  expiration  or  repeal  of 
a  bankrupt  law  of  Congress,  the  ability  of  the  State  to 
exercise  its  concurrent  power  in  regard  to  bankruptcy, 
qualified  as  I  have  mentioned,  immediately  revives. 

The  Legislature  of  the  Union,  then,  possesses  the 
power  of  enacting  bankrupt  laws,  and  those  of  the 
States  of  passing  insolvent  laws ;  ^  and  a  State  has, 
moreover,  authority  to  pass  a  bankrupt  law  when  no 
Act  of  Congress  exists  on  the  subject  with  which  the 
State  law  might  conflict ;  but  no  State  bankrupt  or 
insolvent  law  is  permitted  to  impair  the  obligation  of 
contracts.  There  is  this  further  limitation  upon  the 
power  of  the  several  States  to  pass  either  bankrupt  or 
insolvent  laws — that  they  cannot,  in  the  exercise  of 
that  power,  act  upon  the  rights  of  citizens  of  other 
States ;  and  hence  the  greater  necessity  of  investing 
Congress  with  power  to  establish  a  uniform  system  of 
bankruptcy  throughout  the  Union ;  as  a  discharge  un- 
der a  State  law  would  be  no  bar  to  a  suit  by  a  citizen 
of  another  State  in  the  Courts  either  of  the  United 
States,  or  any  other  State  than  that  in  which  the  dis- 
charge was  obtained.  It  only  operates  upon  contracts 
made  within  the  State ;  between   its  own  citizens  or 

I  Mr.  Justice  Story,  however,  observes,  in  reference  to  the  case  of 
Sturges  r.  Crowninshield,  that  "  no  distinction  was  ever  practically,  or 
even  theoretically,  attempted  to  be  made  between  bankruptcies  and 
insolvencies."     Comm.  1106. 


310  LECTURES   ON 

suitors  subject  to  State  powers.*  And  it  is  a  principle 
of  universal  law,  that  the  municipal  law  of  the  State 
is  the  law  of  the  contract  made  and  to  be  executed 
within  the  State,  and  that  it  travels  with  it,  whereso- 
ever the  parties  to  it  may  be  found ;  unless  it  refer  to 
the  law  of  some  other  country,  or  be  immoral,  or  con- 
trary to  the  policy  of  the  country  where  it  is  sought  to 
be  enforced ;  and,  consequently,  the  discharge  of  the 
contract,  or  of  the  party  where  the  contract  was  made, 
is  a  discharge  everywhere.  But  a  discharge  under  a 
State  law  is  no  bar  to  a  suit  on  a  contract  not  existing" 
when  the  law  was  passed ;  as  the  exercise  of  the  power 
remaining  in  the  States  to  pass  bankrupt  and  insolvent 
laws  does  not,  in  the  sense  of  the  Federal  Constitution, 
impair  the  obligation  of  posterior  contracts.^  but  only  of 
those  made  antecedently  to  the  law.^ 

Upon  the  question  of  the  constitutionality  of  the 
insolvent  law  of  New  York,  passed  in  1811,  the  prin- 
ciples of  construction  are'  thus  summed  up  by  C.  J. 
Marshall :  "  The  intention  of  the  instrument  must  pre- 
vail. This  intention  must  be  collected  from  its  words  ; 
its  words  must  be  understood  in  that  sense  in  which 
they  are  generally  used  by  those  for  whom  the  instru- 
ment was  intended ;  and  its  provisions  are  neither  to 
be  restricted  into  insignificance,  nor  extended  to  objects 
not  comprehended  in  them,  nor  contemplated  by  its 
framers." 

Acts  of  Congress,  which  have  been  pronounced  con- 
stitutional,  secure   to    the    United    States   priority   in 

1  12  Wheat.  213. 

2  The  validity  of  a  State  insolvent  law  cannot  now  be  considered 
as  an  open  question.     17  Howard,  157. 


CONSTITUTIONAL  JUKISPRUDENCE.  311 

payment  of  debts  due  to  them  over  all  other  creditors, 
in  all  cases  of  insolvency  and  bankruptcy.  But  they 
do  not  extend  to  cases  where  the  debtor  has  not  made 
an  assignment  of  his  whole  property .^ 

The  first  bankrupt  law  passed  by  Congress  pursued 
strictly  the  power  vested  in  that  body,  and  was  in  its 
terms  confined  to  merchants  and  traders.  It  was  but  a 
few  years  in  operation,  and  was  suffered  to  expire  by 
its  own  limitation.  Nor  was  any  attempt  made  for  a 
long  time  to  revive  the  system ;  and  when  afterwards 
the  effort  was  made,  it  was  for  some  years  unsuccessful ; 
nor  was  the  last  Act  on  the  subject  ever  renewed. 

The  obstacles  to  its  revival  were  such  as  to  repress 
every  hope  of  renewing  the  experiment  until  a  material 
change  is  wrought  in  public  opinion.  These  objections 
were,  in  the  first  place,  the  difliculty  of  defining,  to  the 
satisfaction  of  all  parts  of  the  Union,  the  precise  class 
of  debtors  who  could,  consistently  with  the  constitu- 
tional jurisdiction  of  Congress,  be  made  subjects  of  a 
bankrupt  law.  It  seemed,  on  all  these  occasions,  to  be 
taken  for  granted  that  the  power  of  Congress  extended 
no  further  than  to  bankruptcy  in  its  technical  and  lim- 
ited sense,  by  which  its  operation  is  restricted  to  mer^ 
chants  and  traders.  But  the  more  general,  and,  perhaps, 
more  substantial  objection,  was  the  expense,  delay,  and 
litigation  which  had  been  found  to  attend  its  proceed- 
ings ;  and  the  still  more  grievous  abuses  and  fi-auds  to 
which  the  system  leads,  however  great  the  vigilance 
and  integrity  of  those  to  whom  its  administration  is 
committed.     It  was  observed  by  the  Chancellor  and  the 

1  3  Cranch,  78 ;  2  Wheat.  396.  See  also  Acts  of  Congress,  August 
4,  1790,  May  2,  1792,  March  3, 1797. 


312  LECTURES   ON 

Judges  of  the  Supreme  Court  of  New  York,  in  a  report 
made  to  the  Legislature  of  that  State,  by  whom  their 
opinions  had  been  requested  as  to  the  expediency  of 
the  insolvent  laws,  that,  "judging  from  their  former 
experience,  and  from  observation  in  the  course  of  their 
Judicial  duties,  they  were  of  opinion  that  it  was  a 
source  of  fraud  and  perjury.  They  were  apprehensive," 
they  stated,  "  that  the  evil  was  incurable,  and  arose 
principally  from  the  infirmity  inherent  in  such  a  sys- 
tem." With  respect  to  the  infirmities  of  the  English 
system  of  bankruptcy,  which  are  the  growth  of  more 
than  two  centuries,  during  which  it  has  been  constantly 
under  the  view  of  Parliament,  and  maturing  by  the 
wisdom  of  a  succession  of  distinguished  Judges,  the 
late  Lord  Eldon,  one  of  the  ablest  ministers  and  sound- 
est lawyers  of  modern  times,  after  his  appointment  as 
Chancellor,  took  the  earliest  opportunity  to  express  his 
indignation  at  the  frauds  which  had  been  committed 
under  cover  of  that  system,  and  emphatically  remarked, 
that"thj  abuse  of  the  bankrupt  law  was  a  disgrace 
to  the  country." 

In  the  face  of  such  testimony,  thus  derived  from  men 
of  the  greatest  learning  and  experience  in  the  practice 
and  administration  of  the  law  both  in  England  and  in 
this  country,  the  friends  and  advocates  of  the  bankrupt 
system  have  persevered,  and  by  straining  the  constitu- 
tional point,  and  inducing  Congress,  on  the  last  occa- 
sion, to  adopt  a  latitude  of  construction  which  had  not 
been  thought  of  on  any  of  the  former  occasions,  even- 
tually procured  the  passage  of  an  Act  which,  under  the 
title  of  a  Bankrupt  Law,  embraced  provisions  peculiar 
to  insolvent  laws,  rendering  it  the  voluntary  refuge  of 
the  debtor,  and  extending  its  benefits  to  every  descrip- 


CONSTITUTIONAL  JURISPRUDENCE.  313 

tion  of  persons  owing  debts,  with  the  exception  of  those 
created  in  consequence  of  a  defalcation  as  a  public 
officer,  or  as  an  executor,  administrator,  guardian,  or 
trustee,  or  while  acting  in  any  other  fiduciary  capacity. 
It  moreover  subjected  merchants,  traders,  bankers,  fac- 
tors, brokers,  and  underwriters  to  be  declared  bankrupt 
on  the  petition  of  their  creditors,  and  proof  of  their 
having  committed  an  act  of  bankruptcy.  And  this 
measure  prevailed  more  from  the  atrophy  under  which 
commercial  enterprise  and  credit  had  labored  for  the 
few  preceding  years,  than  from  real  conviction  of  its 
consistency  either  with  the  provisions  of  the  Constitu- 
tion, or  the  rules  of  sound  policy.  It  was,  indeed, 
considered  as  a  temporary  expedient,  to  be  abandoned 
when  it  had  performed  its  office,  and  the  causes  which 
produced  it  had  ceased  to  operate  ;  and  it  has,  accord- 
ingly, been  since  repealed.  None  of  the  States  have 
enacted  bankrupt  laws,  technically  so  called.  Most  of 
them,  however,  have  permanent  insolvent  laws ;  but, 
inasmuch  as  they  cannot  discharge  the  debtor  from  the 
obligation  of  his  contract,  and  imprisonment  for  debt 
has  been  abolished  in  most  of  the  States,  the  operation 
of  those  laws  is,  in  effect,  confined  to  the  person  of  the 
debtor  in  the  States  where  that  relic  of  a  barbarous  age 
is  still  preserved, 

"  And  where  he  cannot  be  discharged, 
Till  nature  tire  with  its  own  weight,  and  then 
Is  he  but  more  undone  to  be  at  liberty." 

27 


314  LECTUBBS   ON 


LECTURE    X. 

ON  THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERNMENT 
RELATIVE  TO  CERTAIN  MISCELLANEOUS  OBJECTS  OF  GEN- 
ERAL  UTILITY. 

The  first  to  be  enumerated  in  this  class  is  the  power 
"  to  promote  the  progress  of  science  and  the  useful  arts, 
hy  securing,  for  limited  times,  to  authors  and  inventors, 
the  exclusive  right  to  their  writings  and  discoveries^  ^ 

The  claims  of  authors  and  inventors  are  so  con- 
genial to  our  notions  of  natural  justice,  and  accord  so 
harmoniously  with  the  ultimate  objects  of  society  in 
establishing  the  rights  of  property,  that,  at  first  sight, 
it  seems  strange  that  the  existence  of  this  right  should 
ever  have  been  made  a  question.  It  was  so,  however, 
in  the  great  case  of  literary  property  which  arose  in 
England.  It  was,  nevertheless,  finally  settled,  by  a 
solemn  judgment  of  the  House  of  Lords,  that,  although 
such  right  had  existed  at  Common  Law,  yet  that 
the  statute  passed  in  the  reign  of  Queen  Anne  for 
securing  copyrights  had  limited  the  right,  which  had 
before  been  perpetual,  to  a  term  of  years.  But  those 
Judges,  whose  opinions  were  overruled  by  this  reversal 
of  an  almost  unanimous  opinion  of  the  Court  of  King's 
Bench,'^  and  who,  reasoning  upon  different  principles, 

1  Const.  U.  S.,  Art.  I.  Sect.  viii.  8. 

2  This  celebrated  Ccise  is  reported  in  4  Burrow,  2303,  under  the 


CONSTITUTIONAL  JURISPRUDENCE.  315 

arrived  at  a  different  result,  were  perplexed  by  the  in- 
definite nature  of  the  right,  and  embarrassed  by  the 
consequences  of  admitting  it.     On  the  one   hand,  to 

title  of  Miller  v.  Taylor,  which  was  the  cause  decided  in  the  Court  of 
King's  Bench,  all  the  Judges,  excepting  Mr.  Justice  Yates,  agreeing 
that  an  author  had  the  sole  right  of  printing  and  publishing  his  work 
in  perpetuity  by  the  Common  Law,  and  that  such  right  is  in  nowise 
impeached  by  the  statute  of  Anne.  A  writ  of  error  was  afterward 
brought,  but  the  plaintiff  in  error  suffered  himself  to  be  non-prossed; 
and  the  Court  of  Chancery  granted  an  injunction  in  1770.  In  1774, 
the  case  of  Donaldson  r.  Becket  brought  the  question  on  appeal  be- 
fore the  House  of  Lords.  The  Lords  Commissioners  of  the  Great 
Seal  had  granted  an  injunction  against  violating  a  copyright  at  Com- 
mon Late ;  and  when  the  appeal  from  that  decree  was  brought  up  to 
the  Lords,  the  Judges  were  directed  to  deliver  their  opinions  upon 
the  following  questions,  viz :  — 

1.  Whether,  at  Common  Law,  an  author  had  the  sole  right  oi  first 
printing  and  publishing  his  book  for  sale  ;  and  might  bring  an  action 
against  any  person  who  printed,  published,  and  sold  the  same  without 
his  consent  ? 

2.  If  the  author  had  such  right  originally,  did  the  law  take  it  away 
upon  his  printing  and  publishing  his  work  for  sale ;  and  might  any 
person  afterward  reprint  and  sell  it  for  his  own  benefit  against  the 
will  of  the  author  ? 

3.  If  such  action  would  have  laid  at  Common  Law,  is  it  taken 
away  by  the  statute  of  Anne  ?  And  is  an  author  by  that  statute 
precluded  from  every  remedy,  except  on  the  foundation  of  said 
statute,  and  on  the  terms  and  conditions  prescribed  thereby  ? 

4.  Whether  the  author  of  any  literary  composition,  and  his  assigns, 
had  the  sole  right  of  printing  and  publishing  the  same  in  perpetuity 
by  the  Common  Law  ? 

5.  Whether  this  right  is  in  any  way  impeached,  restrained,  or  taken 
away  by  the  statute  ? 

Upon  the  first  question,  the  Judges  were  eight  to  three  in  the 
affirmative  ;  on  the  second,  seven  to  four ;  on  the  third,  six  to  five  in 
the  negative ;  so  that  the  general  result  was,  "  that  an  author  had  the 
sole  right  in  perpetuity  at  Common  Law,  and  that  such  right  was  in 
nowise  impeached  by  the  statute."    It  was  known  that  Lord  Mans- 


316  LECTURES   ON 

deprive  men  of  genius  of  the  right  to  the  profits  of 
invention  was  discouraging  literature  and  the  useful 
arts,  and  throwing  impediments  in  the  way  of  science 
and  learning.  On  the  other  hand,  an  unlimited  right 
to  the  exclusive  enjoyment  of  the  fruits  of  genius  and 
discovery,  though  for  a  time  it  might  stimulate  both, 
yet,  in  its  consequences,  would  levy  a  perpetual  tax 
on  posterity,  and  check  the  progress  of  invention  itself. 

The  fuU  result  of  admitting  an  exclusive  and  per- 
petual right  of  property  in  the  produce  of  intellectual 
labor  was  not,  and  could  not  be  fully  known  or  esti- 
mated ;  but  that  it  would  operate  as  a  bar  to  the 
advancement  of  human  knowledge,  and  powerfully 
retard  the  progress  of  society,  was  clear  to  demonstra- 
tion. Yet,  to  deny  to  inventors  the  fair  profits  deriva- 
ble from  their  talents  and  exertions,  seemed  to  be  at 
variance  with  every  idea  of  natural  justice  and  every 
dictate  of  liberal  policy.  It  was,  in  effect,  to  deny  to 
genius  its  appropriate  reward,  and  to  withhold  from 
the  powers  of  intellect  one  of  the  strongest  stimulants 
to  their  exertion.  From  a  balanced  consideration, 
therefore,  of  both  sides  of  this  important  question,  the 
statute  of  Anne,  limiting  the  rights  of  authors  and 
inventors,  in  their  writings  and  discoveries,  to  a  term 


field  adhered  to  the  opinion  delivered  by  him  in  the  Court  of  King's 
Bench ;  and  therefore  concurred  with  the  eight  upon  the  first  ques- 
tion ;  and  with  the  seven  upon  the  second  ;  and  with  the  five  on  the 
third.  But,  it  being  unusual  for  a  peer  to  support  his  own  judgment 
on  an  appeal,  he  gave  no  opinion  ;  and  the  Lord  Chancellor  (Apsley) 
seconding  Lord  Camden's,  his  predecessor's,  motion  "  to  reverse,"  the 
decree  of  the  Court  of  Chancery  was  reversed.  So  that  the  decision 
of  the  Peers  was,  in  efiect,  that  the  right  was  perpetual  at  Common 
Law,  but  reduced  by  the  statute  to  a  term  of  years. 


CONSTITUTIONAL  JURISPRUDENCE.  317 

of  years,  was  regarded  as  a  compromise,  by  which  the 
claims  of  the  inventor  were  acknowledged,  his  rights 
defined  and  protected,  and  his  reward  secured;  while 
a  public  interest  was  effectually  created,  and  a  barrier 
against  injurious  consequences  erected  for  the  benefit 
of  posterity. 

Hence  may  be  collected  both  the  origin  and  the 
policy  of  the  Act  of  Parliament.  With  this  statute 
before  them,  and  with  a  full  knowledge  of  the  principles 
and  policy  on  which  it  was  founded,  the  several  States 
ceded  to  Congress  "  a  power  to  promote  the  progress 
of  science  and  the  useful  arts,  by  securing  to  authors 
and  inventors  the  exclusive  right  to  their  writings  and 
discoveries."  The  English  law  had  limited  the  right 
to  a  term  of  years.  The  power  ceded  by  our  Constitu- 
tion was  to  secure  it  "/or  limited  times ;"  the  former 
restricting  the  right  to  a  definite  period  ;  the  latter 
adopting  the  same  principle,  but  leaving  the  quantum 
of  interest  to  the  discretion  of  the  National  Legisla- 
ture. In  execution  of  this  power,  several  Acts  have 
been  passed  by  Congress,  and  are  now  in  force,  defin- 
ing the  limits  for  which  the  exclusive  rights  of  authors 
and  inventors  to  their  writings  and  discoveries  shall  be 
enjoyed,  and  securing  such  enjoyment  for  different 
periods  in  different  cases,  by  penalties  and  other  appro- 
priate remedies  against  those  who  violate  the  right.^ 

The  object,  therefore,  of  this  provision  of  the  Con- 
stitution, and  of  the  laws  enacted  in  virtue  of  it,  is 
twofold  :  first,  to  secure  to  inventors  and  to  authors  a 


1  The  first  of  these  Acts,  passed  in  1790,  instead  of  sanctioning  a 
preexisting  perpetual  right  in  an  author,  created  the  right,  and  se- 
cured it  for  a  limited  time.     8  Peters,  591. 

27* 


318  LECTURES  ON 

reward  for  their  labors  ;  and,  secondly,  to  secure  to 
the  public  the  benefit  of  their  works,  by  bringing  the 
property  in  them  into  the  common  stock,  after  the 
expiration  of  the  times  limited  for  the  exclusive  priv- 
ilege ;  and  it  is  manifest  that  this  double  object  can 
only  be  effected  by  such  a  construction  of  the  Consti- 
tution as  will  leave  to  Congress  the  exclusive  power 
of  legislation  on  the  subject.  Prior  to  the  adoption 
of  the  Federal  Constitution,  Legislative  Acts  in  favor 
of  valuable  discoveries  and  improvements  had  been 
passed  in  several  of  the  States ;  but  their  efficacy  be- 
ing confined  to  the  limits  of  those  States,  the  privileges 
thus  secured  were  of  little  value ;  and,  whatever  they 
were  worth,  all  these  State  enactments  ceased  as  soon 
as  the  Federal  Constitution  was  adopted.  For  greater 
caution,  however,  it  was  provided,  in  one  of  the  first 
Acts  of  the  National  Legislature,  that  the  applicant 
for  the  benefit  of  the  protection  of  Congress  should 
surrender  his  right  under  the  .State  law,  and  that  his 
obtaining  a  patent  under  the  laws  of  the  United  States 
should  be  evidence  of  such  surrender. 

An  important  and  protracted  controversy,  neverthe- 
less, arose  in  the  State  of  New  York  as  to  the  nature 
and  extent  of  the  power  in  question,  which  occupied, 
at  different  times,  the  attention  both  of  the  Legislature 
and  Courts  for  several  years  before  it  was  happily  set 
at  rest  by  the  Supreme  Court  of  the  United  States  — 
not  by  an  express  construction  of  this  particular  power, 
but  by  a  series  of  decisions  upon  analogous  cases  in- 
volving similar  principles,  and  bearing  in  one  case  on 
the  subject  itself.  I  refer  to  the  case  of  Livingston 
and  Van  Ingen,  in  which  the  question  arose  as  to  the 
validity  of  the  grant  made  by  the  Legislature  of  New 


CONSTITUTIONAL  JUEISPRUDENCE.  319 

York  to  certain  individuals,  of  the  exclusive  right  of 
navigating  its  waters  with  boats  propelled  by  means 
of  fire  or  steam. 

Before  the  adoption  of  the  Federal  Constitution,  an 
Act  was  passed  by  the  Legislature  of  that  State  grant- 
ing and  securing  to  one  John  Fitch  "  the  sole  right  and 
advantage  of  employing  the  steamboat  by  him  lately 
invented"  and  investing  him  and  his  representatives 
"  with  the  exclusive  right  and  privilege  of  navigating 
all  kinds  of  boats,  propelled  by  the  force  of  fire  or 
steam,  within  all  the  waters  within  the  territory  and 
jurisdiction  of"  the  State  of  New  York,  "  for  the  term  of 
twenty  years  "  from  the  passing  of  that  Act,  in  March, 
1789.  In  March,  1798,  nearly  ten  years  subsequent  to 
the  ratification  of  the  Federal  Constitution,  and  after 
Congress  had  passed  that  Act,  in  execution  of  the 
power  under  discussion,  which  contains  the  provisions 
requiring  the  surrender  by  applicants  under  it  of  the 
State  rights  before  granted  to  them,  another  Act  was 
passed  by  the  Legislature  of  the  same  State,  of  which 
the  preamble  sets  forth,  "  that  Robert  R.  Livingston 
had  represented  that  he  was  possessed  of  a  mode  of 
applying  the  steam-engine  to  propel  a  boat  on  new 
and  advantageous  principles  ;  but  that  he  was  deterred 
from  carrying  it  into  effect  by  the  uncertainty  and 
hazard  of  a  very  expensive  experiment,  unless  he  could 
be  assured  of  an  exclusive  advantage  from  it  should  it 
be  found  successful ; "  and  that  "  he  was  also  deterred 
from  the  enterprise  by  the  existence  of  the  previous 
Act  in  favor  of  Fitch,  who  was  stated  to  be  dead,  or 
to  have  withdrawn  from  this  State  without  having" 
made  any  attempt  to  execute  the  plan  for  which  he  had 
obtained  the  exclusive  privilege,"  whereby  it  was  alleged 


320  LECTURES   ON 

to  have  been  justly  forfeited ;  it  was  "  therefore  enacted 
that  privileges  similar  to  those  granted  to  John  Fitch  " 
should  be  extended  to  Mr.  Livingston  and  his  repre- 
sentatives, for  the  term  of  twenty  years,  upon  condition 
that  he  should,  within  one  year,  build  a  boat  to  be 
propelled  by  fire  or  steam,  "the  mean  rate  of  whose 
progress  should  not  be  less  than  four  miles  an  hour ; 
and  that  he  should  at  no  time  omit,  for  the  space  of 
one  year,  to  have  a  boat,"  of  a  certain  burden  and 
construction,  "  plying  between  the  cities  of  New  York 
and  Albany." 

These  conditions  not  having  been  performed  within 
the  period  specified,  the  time  for  fulfilling  them  was 
repeatedly  enlarged  by  successive  Acts  of  the  Legisla- 
ture for  the  purpose.  One  of  these,  passed  after  the 
former  ones  had  expired,  revived  the  privileges  granted 
by  them  in  favor  of  Robert  R.  Livingston  and  Robert 
Fulton.  In  the  year  1807,  the  proof  required  of  per- 
formance of  the  first  condition  of  the  grant  was  duly 
exhibited,  and  a  boat  propelled  by  steam,  at  the  rate  of 
more  than  four  miles  an  hour,  began  to  "  ply  between 
the  cities  of  New  York  and  Albany,"  in  pursuance  of 
the  second.  Other  boats  were  subsequently  built  by 
the  grantees  of  the  State,  and  after  they  had  continued 
for  some  years  in  successful  operation,  rival  boats,  pro- 
pelled in  the  same  manner,  were  established,  in  defi- 
ance of  the  State  grant,  both  on  the  Hudson  River  and 
on  Lake  Champlain,  by  persons  denying  its  vaUdity. 
Application  for  redress  was  speedily  made  by  Messrs. 
Livingston  and  Fulton  to  the  State  Courts  of  New 
York,  and  the  question  presented  was,  whether  the  grant 
made  to  them  by  the  Legislature  was  not  absolutely 
void,  as  made  in  contravention  of  the  powers  of  Con- 


CONSTITUTIONAL  JURISPRUDENCE.  321 

gress  to  promote  the  progress  of  science  and  the  arts,  and 
to  regulate  commerce.  It  was  decided  in  the  Court  of 
Chancery  that  the  State  grant  was  void  on  the  ground 
alleged ;  but  on  an  appeal  to  the  Court  of  Errors  and 
Appeals,  that  decision  was  overruled,  and  it  was  de- 
clared by  this  tribunal  of  the  last  resort  in  the  State, 
that  the  grant  was  not  absolutely  void,  on  two  distinct 
grounds,  viz :  that,  considering  Messrs.  Livingston  and 
Fulton  as  inventors^  the  State  had  a  concurrent  power 
with  Congress  to  reward  them  as  such,  by  the  grant  of 
exclusive  privileges  to  be  exercised  within  its  jurisdic- 
tion ;  and,  secondly,  that,  considering  them  merely  as 
the  possessors  and  importers  of  a  foreign  invention,  the 
State  had  an  independent  power  to  reward  them  for  the 
introduction  of  such  invention  into  beneficial  use  upon 
its  waters — a  power  not  ceded  to  Congress  at  all.  It 
was  observed,  however,  by  one  of  the  Judges,  that  "  if 
the  opposite  party  could  have  shown  a  right  by  patent 
from  the  United  States,  as  inventors,  they  must  have 
prevailed,  and  the  State  law  would  have  given  way  to 
the  superior  power  of  Congress."  For  it  must  be  borne 
in  mind  that  the  opponents  of  Messrs.  Livingston  and 
Fulton  claimed  no  right  or  title  whatsoever,  either 
under  a  patent  or  coasting  license  ;  and,  for  aught  that 
appeared,  their  mode  of  applying  the  steam-engine  in 
the  navigation  of  their  boats  might  be,  as  in  fact  it 
was,  the  same  which  had  been  introduced  by  the 
grantees  of  the  State.^ 

After  notice  of  an  appeal,  on  the  part  of  their  adver- 
saries, to  the  Supreme  Court  of  the  United  States, 
Messrs.  Livingston  and  Fulton  offered  terms  of  com- 

1  9  Johns.  Rep.  557. 


322  LECTURES   ON 

promise  which  were  too  advantageous  to  be  refused 
by  the  other  side,  and,  consequently,  these  questions 
were  not  then  carried  up  to  the  Federal  Court ;  and  in 
the  subsequent  case,^  referred  to  in  a  former  Lecture, 
the  question  respecting  the  nature  and  effect  of  the 
power  to  promote  the  progress  of  science  and  the  arts, 
did  not  arise.  That  case  turned  wholly  upon  the 
collision  between  the  exclusive  privilege  granted  by 
the  State  Legislature  and  the  power  of  Congress  to 
regulate  commerce ;  and  the  State  laws  were  declared 
to  be  void,  merely  from  their  repugnance  to  the  exer- 
cise of  that  power  by  the  Federal  Government.  The 
leading  principles,  however,  of  that  decision,  as  well 
as  much  of  the  reasoning  in  the  case  relative  to  the 
licenses  required  by  the  State  of  Maryland  from  im- 
porters of  foreign  goods,  apply  with  equal  force  to  the 
power  now  under  discussion  ;  and  although  the  in- 
validity of  the  State  grant  has  thus  been  established, 
and  the  question  relative  to  the  nature  and  operation 
of  a  patent  from  the  United  States  can  never  arise 
with  respect  to  that  grant,  yet  it  may  become  material 
in  other  controversies,  and,  from  its  general  importance, 
deserves  examination.  With  all  due  deference  to  the 
opinion  of  "  the  highest  Court  in  the  State "  of  New 
York,  I  shall  endeavor  to  show  the  obvious  meaning 
of  the  Constitution  to  be,  that  Congress  shall  secure 
"  the  exclusive  rights  of  authors  and  inventors  to  their 
respective  writings  and  discoveries,"  by  the  exercise  of 
an  exclusive  power  of  legislation. 

In  a  confederated  Government,  extending,  like  ours, 
over  many  independent  sovereignties,  it  seems  difficult 

1  10  Wheat.  446. 


CONSTITUTIONAL  JURISPRUDENCE.  323 

to  conceive  in  what  manner  the  right  in  question  can 
possibly  be  secured,  except  by  vesting  such  exclusive 
power  in  a  paramount  authority  ;  and  the  necessity  of 
such  a  power  to  the  attainment  of  the  end  was  an 
adequate  reason  for  vesting  it  in  the  Supreme  Legisla- 
ture of  the  Union.  The  power  under  consideration 
comes  under  that  class  of  cases  enumerated  in  the 
thirty-second  number  of  "  The  Federalist,"^  to  which 
the  exercise  of  a  similar  power  in  the  States  would  be 
repugnant  and  contradictory.  The  example  which  the 
learned  and  eloquent  author  of  that  paper  selected  to 
illustrate  his  reasoning,  involved  a  contradiction  by 
direct  implication,  from  the  force  of  the  terms.  It  was 
an  example  taken  from  the  power  of  Congress  to  estab- 
lish a  uniform  system  of  naturalization ;  and  it  was 
argued  that  such  power  must  necessarily  be  exclusive, 
because,  if  each  State  had  power  to  prescribe  a  distinct 
rule,  the  rule  of  Congress  could  not  be  uniform.  In 
the  present  case,  the  power  given  is  necessarily  exclu- 
sive, both  from  the  terms  and  the  nature  of  the  grant. 
The  words  are,  that  "  Congress  shall  have  power  to 
secure  the  exclusive  rights  of  authors  and  inventors, 
for  limited  times."  Now,  if  a  State  have  a  concurrent 
power  with  Congress  over  the  subject,  it  must  be  a 
power  arising  from  the  unceded  portion  of  its  sov- 
ereignty, and,  consequently,  a  power  to  grant  without 
limit  of  time.  But  how  could  Congress  secure  to  the 
inventor,  for  a  limited  period,  the  enjoyment  of  that 
which  the  State  might  grant  to  another  forever  ?  It 
was  said,  on  the  occasion  referred  to,  in  the  Court  of 
Errors,  by  one  of  its  most  eminent  judges,  "  that  if  an 

'  By  Mr.  Hamilton. 


824  LECTURES   ON 

author  or  inventor,  instead  of  resorting  to  the  Act  of 
Congress,  should  apply  to  the  State  Legislature  for  an 
exclusive  right  to  his  production,  there  is  nothing  to 
prevent  the  State  from  granting  such  exclusive  priv- 
ilege, provided  it  be  confined  in  its  exercise  to  the 
particular  jurisdiction."  But,  with  all  due  submission, 
if  this  opinion  be  correct,  one  of  two  things  must 
follow :  either  that  Congress  may  secure  to  an  inventor 
or  author  an  exclusive  right  in  his  discovery  or  writing, 
and  the  State  secure  to  another,  either  as  author  or 
possessor  of  the  same  invention,  the  exclusive  right  to 
use  it  within  its  own  jurisdiction  ;  or  that  Congress 
cannot  secure  such  a  right  to  the  inventor  after  the 
State  has  secured  it  to  the  possessor.  In  the  former 
conclusion  this  consequence  seems  to  be  involved :  that 
Congress  may  grant  an  exclusive  right  to  one  person 
to  the  use  of  a  certain  thing  throughout  the  Union ;  and 
that  the  individual  States  may  grant  an  exclusive  right 
to  another  person  to  use  the  same  thing  within  the 
limits  of  a  particular  district ;  or,  in  other  words,  that 
over  the  same  subject,  and  within  the  same  jurisdiction, 
two  coordinate  powers  may  grant  exclusive  privileges 
to  different  persons.  The  other  branch  of  the  dilemma 
supposes  the  State  to  derogate,  by  an  assumption  of 
power,  from  the  express  terms  of  its  grant  to  the  Fed- 
eral Government,  and  actually  to  exercise  an  exclusive 
power  to  secure  exclusive  privileges,  in  direct  contra- 
diction to  the  terms  of  the  power  ceded  to  Congress. 
Nor  does  it  obviate  this  repugnancy  to  say  that,  when 
these  separate  powers  come  into  direct  conflict,  the 
grant  of  the  State  must  yield  to  "  the  supreme  law  of 
the  land,"  because  the  repugnancy  is,  from  the  nature 
of  the  subject,  different  from  that   arising  under    the 


CONSTITUTIONAL  JURISPRUDENCE.  325 

power  to  regulate  commerce,  and  is  directly  deduci- 
ble  from  the  propositions  themselves,  and  not  from 
any  casual  effects  or  consequences  arising  from  the 
accidental  collision  of  concurrent  or  of  independent 
powers. 

The  power  now  in  question  is,  moreover,  exclusive, 
from  the  nature  of  the  grant ;  because,  if  each  State 
have  a  concurrent  power,  its  exercise  would  defeat  the 
twofold  object  for  which  the  Federal  Constitution  in- 
tended to  provide.  That  object,  we  have  seen,  was  to 
secure  to  the  public  the  benefit  and  transmission  of 
invention,  as  well  as  to  secure  to  genius  a  reward  for 
its  productions  and  discoveries.  But  if  the  individual 
States  have  a  concurrent  power  with  Congress,  neither 
branch  of  this  object  can  be  secured  by  the  latter;  for, 
in  regard  to  the  former  branch,  if  Congress  prescribe 
fourteen  years  as  the  limit  of  exclusive  rights,  and 
render  them  common  at  the  expiration  of  that  period, 
each  State  might  fix  a  different  period,  or  might  secure 
a  right  of  property  to  authors  and  inventors  in  per- 
petuity. Nor  could  the  latter  branch  of  the  object  be 
secured  by  Congress  if  the  States  could  exercise  a 
concurrent  power ;  because  each  State  might,  upon 
that  supposition,  reduce  the  term  of  exclusive  enjoy- 
ment to  a  minimum,  or  declare,  at  once,  the  firuits  and 
industry  of  genius  to  be  common  property. 

The  arguments  against  the  exclusive  nature  of  this 
power  of  Congress,  drawn  from  the  nature  and  effect 
of  a  patent  in  merely  securing,  as  was  alleged,  a  title 
or  right  of  property,  without  conferring  a  right  of  sale 
or  of  use  ;  and  the  objection  deduced  from  the  right  of 
legislation  retained  by  the  States  in  regard  to  their 
purely  internal  trade  and  intercourse,  and  their  police, 
28 


326  LECTURES   ON 

health,  and  inspection  laws,^  have,  in  effect,  been  met 
and  refuted  by  the  Supreme  Court,  in  their  opinions 
declaring  that  a  coasting  license  not  only  ascertains 
the  national  character  and  ownership  of  a  vessel,  but 
confers  a  right  of  navigation  ;  that  a  right  to  import 
goods  involves  the  right  to  sell  them  ;  and  that,  when- 
ever those  rights  come  into  collision  with  State  laws, 
passed  in  virtue  either  of  a  concurrent  or  of  an  inde- 
pendent right  of  legislation,  on  these,  or  any  other 
subjects,  and  the  exercise  of  the  Federal  and  State 
authorities  are  found  repugnant  or  irreconcilable  to 
each  other,  the  State  law  must  yield  to  the  superior 
power  of  Congress.  So  a  patent  or  a  copyright  not 
only  ascertains  the  title  of  the  patentee  or  author,  but 
confers  the  same  paramount  right  of  using,  and  vend- 
ing to  others  to  use,  their  respective  discoveries  and 
writings. 

In  applying,  however,  the  reasoning  of  Chief  Justice 
Marshall  to  the  case  of  a  patent  or  copyright,  it  is, 
perhaps,  necessary  to  remark  that  the  property  which 
an  author  may  have  in  his  writings  appears  to  be 
somewhat  different  from  that  which  an  inventor  may 
have  in  his  discoveries.  The  former  has  no  beneficial 
use  or  property  whatever  in  his  writings,  independently 
of  that  which  may  be  derived  from  the  sale  of  them. 
The  latter  may,  though  in  a  very  restricted  sense,  use 
his  invention  for  purposes  of  profit ;  to  both,  however, 
a  right  of  sale  is  indispensable,  but  more  manifestly  so 
in  the  first  case  than  in  the  last.  Every  other  subject 
of  property  may  be  partially  enjoyed,  though  the  right 

1  Vide  a  pamphlet  entitled  "  A  Vindication  of  the  Laws  of  New 
York,  granting  exclusive  privileges  to  Robert  R.  Livingston  and 
Robert  Fulton,"  by  Cadwallader  D.  Golden,  Esq.,  Albany,  1818. 


CONSTITUTIONAL   JURISPRUDENCE.  327 

of  sale  be  restricted  or  forbidden ;  but  the  right  of  prop- 
erty of  authors  and  inventors  is  so  essentially  connected 
with  the  right  of  sale,  that  the  inhibition  of  that  right 
annihilates  the  whole  subject.  The  right  of  sale,  in 
these  instances,  therefore,  is  an  elementary  principle  in 
the  very  idea  of  property.  Separate  it  from  the  rest, 
and  the  complex  legal  notion  of  property  is  destroyed ; 
the  value — the  thing  intended  to  be  secured,  is  lost  to 
it.  All  human  laws  proceed  upon  the  assumption  of 
value  as  implicitly  involved  in  the  idea  of  property  ; 
and  as  new  discoveries  in  science,  and  new  improve- 
ments in  the  arts,  give  rise  to  new  modifications  of 
property,  the  first  thing  that  attracts  the  attention  of 
the  Legislature  to  any  subject  as  being  capable  of 
appropriation  or  exclusive  ownership  is  its  value.  Ac- 
cordingly, we  find  that  the  laws  passed  by  Congress  ^ 
in  virtue  of  the  constitutional  power  now  in  question, 
secure  to  an  author  or  his  assignee  "  the  sole  right  and 
liberty  of  printing,  reprinting,  publishing,  and  vending" 
his  work ;  and  to  a  patentee,  "  the  full  and  exclusive 
right  and  liberty  of  making,  constructing,  using,  and 
vending  to  others  to  be  used,"  his  invention  or  discovery 
within  the  several  times  limited  for  the  enjoyment  of 
their  respective  privileges. 

How  far  the  exercise  of  this  right  of  property  is  liable 
to  be  controlled  and  regulated  by  the  municipal  laws  of 
the  several  States,  depends  in  a  great  measure  on  the 
principles  recognized  and  established  in  the  two  cases 
to  which  I  have  so  often  referred,  as  decided  in  the 
Supreme  Court  of  the  United  States.  In  the  prior 
case,^  decided  in  the  Court  of  Errors  of  the  State  of 

1  Laws  U.  S.  1  Cong.  2  Sess.  ch.  xv. ;  2  Cong.  2  Sess.  ch.  xi. 

2  9  Johns.  Rep.  507. 


328  LECTURES   ON 

New  York,  it  was  held  that  the  Legislature  of  a  State 
may  prohibit  the  use  of  any  particular  invention,  as 
noxious  to  the  health,  injurious  to  the  morals,  or  in  any 
respect  prejudicial  to  the  welfare  of  its  citizens.  But, 
in  addition  to  the  qualifications  which  this  assertion 
must  receive  from  the  doctrine  of  the  Supreme  Court, 
it  seems  to  me  that  the  Government  of  the  Union  must 
possess  exclusively  the  power  of  determining  whether 
an  invention  for  which  a  patent  is  sought  be  useful  or 
pernicious ;  or,  in  other  words,  whether  it  be  one  for 
which  a  patent  ought  to  be  granted.  The  object  of  the 
constitutional  power  of  Congress  is  the  promotion  of 
the  "  useful  arts ; "  an  invention  useless  or  pernicious 
would  not  be  a  proper  object  for  its  exercise  ;  but 
should  a  patent  for  such  an  invention  have  unad- 
visedly issued,  there  can  be  no  doubt  that  the  Federal 
authority  might  repeal  the  patent,  and  interdict  the 
use  of  the  noxious  discovery.  If  a  thing  in  itself  per- 
nicious be  patented,  the  patentee  could  recover  no 
damages  for  the  violation  of  his  right,  as  his  patent 
would  confer  no  right  of  property  upon  him.  If  it  be 
useful  in  itself,  but  the  art  or  manufacture  to  which  it 
relates  be  injurious,  in  its  exercise,  to  the  public  health, 
the  patent  would  afford  no  protection  for  the  nuisance, 
because  private  interests  must  yield  to  the  public  good, 
and  not  because  the  Federal  power  is  superseded  or 
controlled  by  the  State  law.  So,  if  the  author  of  an 
imrrforal  or  libellous  book  prosecute  for  the  invasion  of 
his  copyright,  he  could  receive  no  indemnity ;  and  if 
prosecuted  for  his  offence  against  the  State  law,  in 
issuing  such  a  publication,  the  authority  of  the  United 
States  would  not  protect  him,  as,  in  the  one  case,  his 
copyright  would  invest  him  with  no  right  of  property, 


CONSTITUTIONAL  JUmSPRUDENOE.  329 

and,  in  the  other,  would  convey  no  right  to  use  his 
property  to  the  injury  of  others.  Nor  would  the  pat- 
entee of  a  newly-invented  vehicle,  any  more  than  the 
owner  of  a  post-coach  conveying  the  mail  of  the  United 
States,  be  entitled  to  pass  over  a  State  turnpike-road 
without  paying  the  toll,  nor  a  patented  steamboat  per- 
mitted to  ply  on  a  ferry  established  by  State  authority, 
without  being  subjected  to  the  accustomed  ferriage,  or 
to  the  penalties  provided  in  cases  of  such  violation  of 
the  particular  right  to  the  ferry,  any  more  than  that  or 
any  other  vessel  would  be  exempted  from  them  by  a 
coasting  license.  Restrictions  of  this  nature  are  gen- 
eral in  their  operation.  They  are  not  confined  to  the 
patentee^  and  in  no  sense  do  they  derogate  from*  the 
exclusive  power  of  Congress  in  relation  to  the  promo- 
tion of  science  and  the  useful  arts.  But  a  construction 
of  the  Constitution  admitting  that  the  States,  in  the 
exercise  of  an  absolute  discretion,  may  prohibit  the  in- 
troduction or  use  of  any  particular  invention  for  which 
a  patent  had  been  regularly  obtained,  would  render  the 
power  in  question  completely  nugatory,  and  the  States 
would  retain  substantially  the  very  power  they  had 
nominally  parted  with. 

This  power  of  securing  to  authors  and  inventors  a 
right  of  beneficial  ownership  in  their  writings  and  dis- 
coveries, has  been  surrendered  to  Congress,  and  any 
encouragement  to  invention,  invitation  to  the  intro- 
duction of  improvements,  or  attempt  to  promote  the 
progress  of  literature,  science,  and  the  arts,  which  inter- 
feres with,  or  prevents  the  exercise  of  that  power,  is  an 
assumption  of  authority  fairly,  and  on  good  considera- 
tion, yielded  to  the  General  Government.  The  several 
States,  nevertheless,  retain  all  other  means  of  securing 
28* 


330  LECTURES   ON 

rewards  to  genius,  of  promoting  learning  and  science, 
of  encouraging  new  discoveries,  and  inviting  improve- 
ments in  the  arts,  except  the  power  thus  ceded  to  the 
Union.  And  although  an  individual  State  can  neither 
secure  to  an  inventor  an  exclusive  property  in  his  inven- 
tion, nor,  for  any  known  and  used  improvement,  grant 
exclusive  privileges  in  the  use  of  anything  that  may 
become  the  subject  of  a  patent,  yet  it  may  promote 
the  progress  of  learning,  encourage  new  discoveries  in 
science,  and  invite  the  introduction  of  new  improve- 
ments in  all  the  liberal  and  useful  arts,  in  any  other 
way  that  human  ingenuity  can  devise,  or  good  policy 
may  dictate,  and  which  does  not  interfere  with  the 
exercise  of  the  power  vested  for  the  same  purposes  in 
Congress.  And  the  reason  of  the  difference  is  simply 
this  :  that  all  the  other  modes  of  effecting  those  objects 
may,  without  danger  of  being  defeated  by  the  clashing 
laws  of  coordinate  Legislatures,  be  safely  committed 
to  the  several  States,  while  the  simple  mode  of  securing 
the  right  of  property  must  be  possessed  by  the  supreme 
Federal  authority  alone ;  for,  in  the  peculiar  condition 
and  circumstances  of  the  country,  that  end  cannot 
otherwise  be  effected. 

II.  The  power  vested  in  Congress  "to  exercise  ex- 
clusive legislation,  in  all  cases  whatsoever,  over  such 
District,  not  exceeding  ten  miles  square,  as  may,  by 
cession  of  particular  States,  and  the  acceptance  of  Con- 
gress, become  the  seat  of  the  Government  of  the  United 
States ;  and  to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  Legislatures  of  the 
States  in  which  the  same  shall  be  situated,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings" 


CONSTITUTIONAL  JURISPRUDENCE.  331 

This  power  was  granted  to  Congress  from  a  convic- 
tion of  the  indispensable  necessity  of  investing  that 
body  with  complete  supremacy  and  control  at  the  seat 
of  the  National  Government.  Without  the  possession 
of  such  a  power,  the  Federal  authority  might  be  in- 
sulted, and  its  proceedings  interrupted  with  impunity; 
and  the  dependence  of  the  functionaries  of  the  General 
Government  on  one  of  the  States  for  protection  in  the 
exercise  of  their  duties,  might  subject  the  national 
councils  to  the  imputation  of  partiality,  and  be  produc- 
tive of  an  influence  equally  dishonorable  to  the  Gov- 
ernment, and  dissatisfactory  to  the  other  members  of 
the  Union.  This  consideration  was  of  greater  weight, 
as  the  public  archives  liable  to  destruction  would 
accumulate,  and  the  gradual  multiplication  of  public 
improvements  at  the  permanent  residence  of  the  Na- 
tional Government  would,  it  was  thought,  create  so 
many  additional  obstacles  to  its  removal,  and  still 
further  abridge  its  necessary  independence.  The  ne- 
cessity of  a  like  authority  over  the  forts,  arsenals,  and 
dockyards,  and  their  appendages,  established  by  the 
Federal  Government,  was  supposed  to  be  not  less 
evident.  The  public  money  expended  on  such  estab- 
lishments, and  the  public  property  deposited  in  them, 
require  their  exemption  from  the  local  authority  of  the 
State  where  they  are  situated.  Nor  would  it  be  proper 
that  places  on  which  the  security  of  the  entire  Union 
may  depend,  should  be  in  any  degree  dependent  on  a 
particular  member  ;  and  all  objections  and  scruples 
were  obviated  by  requiring  the  concurrence  of  the 
States  concerned  in  every  such  establishment. 

The  cessions  of  territory  contemplated  by  the  Con- 
stitution were  duly  made  by  the  States  of  Maryland 


332  LECTURES    ON 

and  Virginia,  whereby  Congress  was  enabled  to  execute 
this  power  by  establishing,  under  its  own  jurisdiction, 
a  permanent  seat  for  the  National  Government.  This 
territory  was  erected  into  a  "  District,"  under  the  ex- 
clusive jurisdiction  of  Congress,  by  the  name  of  the 
«  District  of  Columbia."  The  City  of  "  Washington  " 
was  built,  and  the  necessary  edifices  for  the  accommo- 
dation of  all  the  different  branches  of  the  Federal 
Government  were  erected  on  the  banks  of  the  Potomac, 
in  conformity  with  a  favorite  wish  of  General  Wash- 
ington, and  almost  in  sight  of  the  place  of  his  residence 
in  life,  and  his  repose  in  death.  The  seat  of  Govern- 
ment was  removed  thence  at  the  commencement  of  the 
present  century.  Municipal  corporations  were  created 
by  Congress  for  managing  the  local  concerns  of  the 
"  Federal  city,"  and  of  the  cities  of  Georgetown  and 
Alexandria,^  situated  within  the  "  ten  miles  square," 
ceded  by  the  respective  States  within  whose  limits  they 
had  been  previously  included.  Laws  have,  from  time 
to  time,  been  passed  by  Congress  for  the  government 
of  the  District  of  Columbia,  and  local  courts  estab- 
lished, as  we  have  seen,  for  the  administration  of  justice 
within  its  limits.  But  the  Acts  of  Congress  adopted 
the  laws  of  Maryland  and  Virginia  as  the  laws  of  the 
several  portions  of  the  District  ceded  by  those  States 
respectively,  with  such  alterations  only  as  were  ren- 
dered necessary  by  the  change  of  jurisdiction.^  Nor 
were  the  separation  of  the  territory  and  the  transfer  of 
the  jurisdiction  permitted  to  affect  existing  contracts 
between  individuals.^ 

1  The  city  of  Alexandria  has  since  been  receded  to  the  State  of 
Virginia. 

2  1  Cranch,  252.  3  6  Ibid.  192. 


CONSTITUTIONAL  JTIRISPRUDENCE.  333 

Although  the  inhabitants  of  the  District  of  Columbia, 
by  its  separation  from  Maryland  and  Virginia,  ceased 
to  be  citizens  of  those  respective  States,  yet,  as  citizens 
of  the  United  States,  they  are  entitled  to  the  benefit 
of  aU  commercial  and  political  treaties  with  foreign 
powers,  and  to  the  protection  of  the  Union  at  home, 
as  well  as  abroad.^  And  notwithstanding  the  power 
of  Congress  to  exercise  exclusive  legislation  over  this 
Federal  territory  includes  the  power  of  taxing  its  inhab- 
itants, they  do  not  in  any  manner  participate  in  the 
election  of  members  of  the  House  of  Representatives. 
I  have  already  had  occasion  to  explain  upon  what 
principles  this  anomaly  in  the  Constitution  has  been 
justified  ;2  and  it  may  now  be  added,  that  the  adequate 
provisions  for  their  local  government,  and  the  advan- 
tages derived  from  the  residence  of  the  General  Gov- 
ernment, are  deemed  by  the  inhabitants  themselves 
sufficient  to  counterbalance  their  political  disabilities ; 
that  no  public  inconvenience  has  been  experienced  from 
their  existence ;  and  that  the  circumstance  was  known 
before  the  cession  of  the  territory,  and  when  the  inhab- 
itants voluntarily  established  their  residence  within  it. 

III.  The  next  power  falling  within  this  miscellaneous 
class  is  the  power  of  Congress  "  to  declare  the  punish- 
ment of  treason  "  against  the  United  States. 

It  is  a  general  principle,  that  every  Government  con- 
tains within  itself  the  means  and  capacity  for  its  own 
preservation.  Had  the  express  enumeration,  therefore, 
of  this  power  been  omitted  in  the  Constitution,  it  could 
not  have  been  intended  that  the  Federal  Government 
was  to  depend  upon  the  individual  States  to  protect  it 

1  2  Cranch,  243.  8  5  Wheat.  324. 


334  LECTURES   ON 

from  treason  and  conspiracies;  yet,  to  have  left  the 
power  of  self-defence  to  inference  or  argument,  would 
have  been  unwise  and  unsafe.  As  the  crime  of  treason 
against  the'  United  States  was  one  which  might  be 
committed,  the  United  States  themselves  might,  with- 
out this  express  authority,  have  punished  its  perpe- 
trators ;  but  as  artificial  and  constructive  treasons  had 
been  frequently  made  engines  of  oppression  by  tyran- 
nical governments,  and,  during  the  prevalence  of  vin- 
dictive factions,  by  such  as  were  comparatively  free,  it 
was  deemed  expedient  to  insert  in  the  Constitution  a 
definition  of  the  crime,  to  prescribe  the  proof  necessary 
for  conviction,  and  to  restrain  Congress,  in  punishing 
it,  from  extending  the  consequences  of  guilt  beyond  the 
person  of  its  author. 

Treason  against  the  United.  States  is,  accordingly, 
declared  to  "consist  only  in  levying  war  against  them, 
or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort."^  The  term  "levying  war"  is  of  technical 
signification,  and  is  adopted  fi»m  the  English  statute 
of  treasons,  and  receives  the  same  construction  with  us 
which  has  been  given  to  it  in  England  ;  and  the  "  war," 
included  in  the  term,  embraces  internal  rebellion,  as 
well  as  hostilities  from  without.  A  conspiracy  to  sub- 
vert by  force  the  Government  of  the  United  States, 
violently  to  dismember  the  Union,  to  coerce  the  repeal 
of  a  general  law,  or  to  revolutionize  a  Territorial  Gov- 
ernment by  force,  if  carried  into  effect,  by  imbodying 
and  assembling  an  armed  force  in  a  military  posture, 
la  an  overt  act  of  levying  war  ;  and  not  only  those  who 
bear  arms,  but  those  who  perform  the  various  essential 

1  Const.  U.  S.,  Art.  IH.  Sect.  in. 


CONSTITUTIONAL  JURISPRUDENCE.  335 

parts  which  must  be  assigned  to  different  persons  for 
the  purpose  of  prosecuting  the  war,  are  guilty  of  the 
crime.i  But  a  mere  conspiracy  for  any  such  purpose, 
unaccompanied  by  any  overt  act.,  is  not  treason ;  and 
to  constitute  a  "levying  of  war,"  there  must  be  an 
assemblage  of  persons,  with  intent  to  effect  by  force 
a  treasonable  purpose.^  The  mere  enlistment  of  men 
for  the  purpose  is  not  sufficient.  Nor  is  it  necessary, 
on  the  other  hand,  that  an  individual  should  appear 
in  arms  against  his  country  to  constitute  the  guilt  of 
treason.  If  war  be  actually  levied,  that  is,  if  a  body 
of  men  be  actually  assembled  in  arms  for  the  purpose 
of  effecting  by  force  a  treasonable  design,  all  those  who 
perform  any  part  in  the  conspiracy,  however  minute,  or 
however  remote  themselves  from  the  scene  of  action,  if 
actually  leagued  in  the  general  enterprise,  are  consid- 
ered as  traitors.  Similar  acts  committed  against  the 
Government  or  laws  of  a  particular  State  are  punish- 
able according  to  the  law  of  that  State,  but  adhering 
to  a  foreign  nation  at  war  vdth  the  United  States,  and 
affording  it  aid  in  the  prosecution  of  hostilities,  is 
treason  against  the  United  States,  and  not  against  the 
particular  State  of  which  the  party  is  a  citizen.^ 

The  Constitution  further  declares,  that  "  no  person 
shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court."  A  confession  out  of  Court,  although 
before  a  magistrate,  is  not  sufficient;*  but  after  the 
treason  is  proved  by  two  witnesses,  such  confession 
may  be   given  in  evidence  by  way  of  corroboration. 

1  4  Cranch,  470.  24  jud.  75-126.  3  11  Johns.  Rep.  653. 

4  Fries's  Case,  in  U.  S.  Cir.  Ct.  for  Pennsylvania. 


336  LECTURES   ON 

The  testimony  of  the  two  witnesses  must  be  to  the 
same  overt  act,  and  not,  as  in  England,  to  two  different 
overt  acts  of  the  same  treason.  The  restriction  on  Con- 
gress with  respect  to  the  punishment  is,  that  "  no 
attainder  of  treason  shall  work  corruption  of  blood  or 
forfeiture,  except  during  the  life  of  the  person  at- 
tainted." Corruption  of  blood,  in  common  with  many- 
better  things,  we  derive  again  from  the  Common  Law. 
It  signifies  that  an  attainted  person  can  neither  inherit 
land  from  his  ancestors,  retain  that  of  which  he  is  in 
possession,  nor  transmit  it  to  his  heirs ;  and  that  he  is, 
moreover,  incapable  of  transmitting  a  title  derived  by 
descent  through  him,  even  from  a  remote  ancestor. 
This  is  visiting  the  sins  of  the  fathers  upon  the  chil- 
dren with  a  vengeance,  as  it  is  not  confined  to  the 
third  and  fourth  generations,  but  extends  to  a  man's 
latest  posterity.  The  doctrine  is  founded  upon  a  legal 
fiction ;  and  is  equally  at  variance  with  the  liberal 
principles  of  modern  times,  and  the  very  elements  of 
justice.  And  in  carrying  this  power  into  execution. 
Congress  has  humanely  stopped  short  of  their  consti- 
tutional authority ;  for,  in  affixing  the  punishment  of 
death  to  the  crime  of  treason,  it  has  declared,  that  "  no 
conviction  or  judgment  shall  work  corruption  of  blood, 
or  any  forfeiture  of  estate ; "  thus  acting  upon  a  con- 
struction of  the  Constitution  which  assumes  a  discretion 
in  omitting  the  latter  as  a  part  of  the  punishment  of 
treason,  even  during  the  fife  of  the  offender  himself. 

IV.  The  fourth  power  of  a  miscellaneous  nature 
vested  in  Congress  is  that  of  "admitting"  new  States 
into  the  Union" 

The  Constitution  of  the  United  States  treats  the 
admission  of  new  States  into  the  Union  as  a  political 


CONSTITUTIONAL  JURISPRUDENCE.  837 

question,  and  has  placed  it  in  the  hands  of  Congress. 
The  exercise  of  this  power,  therefore,  by  the  Courts, 
would  be  entirely  inconsistent  with  any  existing  legis- 
lation of  Congress  on  the  subject.^ 

No  provision  of  this  kind  was  made  in  the  Articles 
of  Confederation,  and  great  inconvenience,  and  much 
assumption  of  power,  were  the  necessary  consequences. 
With  great  propriety  and  advantage,  therefore,  the  new 
Constitution  supplied  this  defect.  But  the  power  was 
not  granted  without  restriction ;  for  "  no  new  State  " 
can  "  be  formed  or  erected  within  the  jurisdiction  of 
any  other  State ;  nor  can  any  State  be  formed  by  the 
junction  of  two  or  more  States,  without  the  consent  of 
the  Legislatures  of  the  States  concerned,  as  well  as  of 
Congress."  2  These  precautions,  which  prevent  either 
the  partition  of  a  large  State,  or  the  junction  of  small 
ones,  without  their  consent,  were  necessary  to  allay  the 
jealousies  existing  on  the  subject,  both  in  the  more  pow- 
erful and  in  the  weaker  members  of  the  Confederacy. 

Upon  the  purchase  of  Louisiana  by  the  United 
States,  some  doubt  was  entertained  whether  the  power 
of  the  General  Government  to  admit  new  States  into 
the  Union  extended  to  territories  not  comprised  within 
the  boundaries  of  the  United  States  at  the  adoption 
of  the  Constitution.  This  question,  although  never 
presented  in  a  form  for  Judicial  decision,  was,  however, 
decided  in  the  affirmative  by  large  majorities  of  both 
houses  of  Congress,  on  the  several  occasions  of  admit- 
ting different  parts  of  that  province  into  the  Union,  as 
the  separate  States  of  Louisiana,  Mississippi,  Missouri, 
and  Arkansas ;  which  Acts  were  severally  approved  by 

1  6  Howard,  1.  2  Const.  U.  S.,  Art.  IV.  Sect.  iii.  1. 

29 


338  LECTURES   ON 

successive  Chief  Magistrates  of  the  Union.  It  must 
therefore  be  considered  as  practically  settled,  and  it 
would  savor  too  much  of  the  spirit  of  controversy,  and 
betray  too  much  self-confidence,  to  offer,  at  this  time 
of  day,  any  argument  in  support  of  the  negative  side 
of  that  question,  and  to  assert  that  such  a  measure 
required  not  only  the  consent  of  the  inhabitants  of  the 
territory,  but  an  amendment  of  the  Constitution  to 
render  it  valid.  All  doubt,  indeed,  seems  long  since 
to  have  subsided,  and  public  opinion  has  sustained  the 
Government  in  this  exercise  of  the  power  in  question, 
on  the  ground  of  constitutional  right,  as  strongly  as  it 
has  been  declared  in  favor  of  its  policy. 

V.  The  power  "  to  dispose  of  and  make  all  needful 
regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States"  is  the  next  one  com- 
prehended in  this  class.^ 

It  was  requisite  that  this  power  should  be  vested  in 
Congress,  by  considerations  similar  to  those  upon  which 
rests  the  propriety  of  its  possessing  the  power  next 
preceding  it ;  and  it  is  accompanied  by  a,  condition,  not 
only  proper  in  itself,  but  which  was  probably  rendered 
absolutely  necessary  by  the  jealousies  and  controversies 
that  existed  concerning  the  Western  territory,  and  which 
provides  that  "  nothing  in  the  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State."  ^ 

The  authority  thus  restricted,  is  adapted  to  all  the 
territorial  rights  of  the  Federal  Government,  beyond 
the  limits  of  any  of  the  States  ;  but  is  not  applicable, 
it  seems,  to  a  fortress  which  has  never  been  actually 

1  Const  U.  S.,  Art.  IV.  Sect.  iii.  2.  2  jud. 


CONSTITUTIONAL  JURISPRUDENCE.  339 

ceded  to  the  United  States ;  nor  to  any  land  occupied 
by  the  General  Government  for  any  similar  purpose, 
with  the  tacit  consent  of  the  State,  although  the  title  to 
the  soil  may  have  been  conveyed  to  the  United  States. 
It  is  under  this  power  that  Congress  claims  authority 
to  legislate  for  the  Territories,  erected  in  provinces, 
acquired,  like  Louisiana  and  the  Floridas,  since  the 
adoption  of  the  Federal  Constitution.  But  if  the  Fed- 
eral Government  possessed  authority  to  purchase  them, 
there  seems  no  necessity  for  resting  the  right  of  legisla- 
tion in  regard  to  them  on  such  narrow  and  insufficient 
grounds,  for  the  power  of  governing  a  territory  is  the 
inevitable  consequence  of  the  right  to  acquire  and 
hold  it. 

The  formation  of  civil  government  in  Upper  Cali- 
fornia at  the  time  of  its  conquest,  was  the  lawful 
exercise  of  a  belligerent  right.  It  was  the  existing 
Government  when  the  Province  was  ceded  to  the 
United  States,  and  did  not  cease,  as  a  matter  of  course, 
or  as  a  consequence  of  the  restoration  of  peace ;  and 
was  rightfully  continued  after  peace  was  made,  and 
until  Congress  established  a  Territorial  Government 
there,  under  its  constitutional  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  and  other  property  belonging  to  the  United 
States.^ 

VI.  The  guarantee  by  the  "  United  States  to  every 
State  in  the  Union  of  a  Republican  form  of  Government ; 
'  to  protect  each  of  them  against  invasion ;  and  on  appli- 
cation of  the  Legislature,  or  of  the  Executive,  when  the 
Legislature  cannot  be  convened,  against  domestic  vio- 

1  16  Howard,  164. 


340  LECTURES   ON 

lence"  may  also  be  classed  among  the  miscellaneous 
powers  of  the  Federal  Government,  as  it  gives  to  it 
a  right  of  interference  to  effect  the  objects  of  the 
guarantee.* 

Governments  of  dissimilar  principles  and  forms  have 
been  found  less  adapted  to  a  Federal  coalition  of  any 
sort,  than  those  of  a  kindred  nature.  In  a  Confederacy 
founded  on  Republican  principles,  and  composed  of 
Republican  members,  the  paramount  superintending 
Government  created  by  it  ought  certainly  to  possess 
the  authority  to  defend  the  whole  system  against  inno- 
vation ;  and  the  more  intimate  the  union,  the  greater 
the  interests  of  its  members  in  the  separate  institutions 
of  each  other,  and  the  more  imperative  the  right  to 
insist  that  the  respective  forms  of  government  under 
which  the  general  compact  was  entered  into  should  be 
substantially  maintained.  But  a  right  implies  a  rem- 
edy, and  nowhere  else  could  an  effectual  remedy  be 
found  in  such  a  case  than  where  it  is  actually  deposited 
by  the  Constitution.  The  mere  stipulation,  without 
the  power  to  enforce  its  observance,  would  be  of  little 
value;  hence  the  term^^gnarantee"  indicates  that  the 
United  States  are  authorized  to  oppose,.and,  if  possible, 
prevent  every  State  in  the  Union  from  abandoning  the 
Republican  form  of  Government.  But  the  authority 
extends  no  further ;  and  it  presumes  the  preexistence 
of  Governments  of  the  form  guaranteed.  So  long, 
therefore,  as  the  Republican  forms  existing  at  the  time 
the  Constitution  was  adopted  are  continued  by  the* 
States,  they  are  guaranteed  by  the  Federal  Govern- 
ment, and  the  Federal  Constitution  imposes  no  other 

A  Const  U.  S.,  Art.  IV.  Sect.  iv. 


CONSTITUTIONAL  JUKISPRIJDENCE.  341 

restriction  upon  the  alteration  of  the  respective  State 
Constitutions  than  that  tliey  shall  not  vary  from  the 
Republican  form.  Whenever  a  State  may  choose  to 
substitute  another  Republican  Government  in  place  of 
that  previously  existing,  it  has  a  right  so  to  do,  and 
is  equally  entitled  to  claim  for  it  the  benefit  of  a 
Federal  guarantee. 

Protection  against  invasion  is  due  from  every  society 
to  the  members  composing  it,  and  the  latitude  of  the 
expressions  used  in  the  Constitution  secures  each  State, 
not  only  from  foreign  hostility,  but  against  the  am- 
bitious or  vindictive  enterprise  of  its  more  powerful 
neighbors.  The  protection  against  domestic  violence 
is  added  with  equal  policy  and  propriety,  as  it  affords 
the  means  of  enforcing  the  guarantee  before  provided 
for,  whenever  a  faction  or  minority  in  a  State  endeavors 
by  violence  to  subvert  the  Republican  form  of  its  Con- 
stitution. It  is  by  no  means,  however,  confined  to  that 
particular  case,  nor  that  particular  object,  but  extends 
to  protection  against  the  acts  even  of  a  majority  of 
the  people  of  a  State,  when  directed  to  any  object  of 
unconstitutional  violence.  For,  although  it  may  at  the 
first  view  appear  inconsistent  with  the  Republican 
theory  either  that  the  minority  will  have  the  power,  or 
that  a  majority  have  not  the  right  to  subvert  the  Gov- 
ernment, yet  mere  speculative  reasoning  must  in  these 
cases,  as  in  all  others,  be  qualified  by  the  lessons  of 
practice  and  experience. 

Unlawful  combinations  for  purposes  of  violence  may 

be  formed  by  a  majority  of  persons  in  a  State,  especially 

in  a  slave-holding  State,  as  well  as  by  a  majority  of  a 

county,  or  other  subdivision  of  a  State ;    and  if  the 

29* 


342  LECTURES   ON 

authority  of  the  State  is  bound  in  the  latter  case  to 
protect  the  local  magistracy,  the  Government  of  the 
Union  is  equally  bound  in  the  former  to  protect  the 
State  authority.  Besides,  there  are  certain  parts  of  the 
State  Constitutions  which  are  so  interwoven  with  the 
Federal  compact,  that  a  violent  assault  cannot  be  made 
on  the  one  without  injury  to  the  other.  The  po*wer  in 
question,  however,  can  only  be  exercised  when  the  blow 
is  directed  against  the  State  Constitution  and  authority, 
or  when  it  incidentally  or  indirectly  affects  the  Govern- 
ment of  the  United  States.  Where  the  violence  is 
immediately  directed  against  the  Federal  authority,  the 
General  Government  is  invested  with  power  to  suppress 
it,  independently  of  any^  requisition  of  the  State  Gov- 
ernment. But  insurrections  against  the  State  Govern- 
ments will  rarely  require  Federal  interposition,  unless 
the  number  of  those  concerned  in  them  bears  some 
proportion  to  the  friends  of  the  State  Constitution ;  and 
it  will  then  be  much  better  that  the  violence  should  be 
suppressed  by  the  superintending  power,  than  that  even 
a  majority  in  a  State  should  be  left  to  maintain  its 
cause  by  a  bloody  and  obstinate  contest.  The  exist- 
ence itself  of  the  right  of  the  General  Government  to 
interpose  will,  however,  generally  prevent  the  necessity 
of  exercising  the  power  ;  and  in  cases  where  it  may  be 
doubtful  on  which  side  justice  lies,  no  better  umpire 
could  be  desired  in  a  State  quarrel  than  the  represen- 
tative authority  of  the  Union,  which  would  be  free  from 
the  influence  of  local  interests,  and  from  participation 
in  local  or  pe  sonal  animosities. 

VII.     The  power  of  Congress  to  ^^  propose  amend- 
ments to  the  Constitution,  and  call  conventions  for  the 


CONSTITUTIONAL  JURISPRUDENCE.  343 

purpose,^^  is  the  last  to  be  referred  to  in  this  class  of 
the  Federal  powers.^ 

That  useful  alterations  would  be  suggested  by  expe- 
rience, could  not  but  have  been  foreseen  by  the  framers 
of  the  Constitution.  It  was  requisite,  therefore,  that  a 
mode  for  introducing  amendments  should  be  provided ; 
and  that  which  was  adopted  guards  equally  against  that 
extreme  facility  which  would  render  the  Constitution 
too  mutable,  and  the  extreme  difficulty  which  might 
perpetuate  its  faults.  The  article  in  question  provides 
that  "  Congress,  whenever  two  thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to 
the  Constitution ;  or,  on  the  application  of  two  thirds  of 
the  Legislatures  of  the  several  States,  shall  call  a  Con- 
vention for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as 
part  of  the  Constitution,  when  ratified  by  the  Legisla- 
tures of  three  fourths  of  the  States,  or  by  Conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  Congress ;  provided 
"  that  no  amendment,  which  may  be  made  prior  to  the 
year  1808,  shall  in  any  manner  affect "  the  previous 
provisions  respecting  the  importation  of  slaves,  and  the 
proportional  imposition  of  capitation  and  other  direct 
taxes ;  "  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate." 

Thus  the  General  and  State  Governments  are  equally 
enabled  to  originate  amendments,  as  their  necessity  is 
pointed  out  by  experience ;  and  I  have  already  had 
occasion  to  remark  that  those  proposed  or  adopted 
since  the  ratification  of  the  Constitution,  were  few  in 

I  Const  U.  S.,  Art.  V. 


344  LECTURES   ON 

number.  They  consist  only  of  three  :  first,  that  which 
declares  "  that  the  Judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State,  or  by  citi- 
zens or  subjects  of  any  foreign  State  ;i  second,  that 
which  changed  the  mode  of  balloting  for  President  and 
Vice-President  by  the  Electors  ;  ^  and,  third,  an  amend- 
ment ordaining  that,  "  if  any  citizen  of  the  United 
States  shall  accept,  claim,  receive,  or  retain  any  title 
of  nobility  or  honor ;  or  shall,  without  the  consent  of 
Congress,  accept  or  retain  any  present,  pension,  office, 
or  emolument  of  any  kind  whatever,  from  any  emperor, 
king,  prince,  or  foreign  power,  such  person  shall  cease 
to  be  a  citizen  of  the  United  States,  and  shall  be  inca- 
pable of  holding  any  office  of  trust  or  profit  under 
them,  or  either  of  them."^ 

The  previous  and  more  numerous  amendments  were 
proposed  by  some  of  the  States  as  conditions  of  their 
accession  to  the  Constitution.  They  aU  operate  as 
general  restrictions  upon  the  powers  of  Congress,  and 
are,  for  the  most  part,  affirmative  either  of  the  inalien- 
able rights  of  individuals,  or  of  the  civil  and  political 
rights  and  privileges  substituted  in  their  stead,  as  ex- 
plained in  our  review  of  the  fundamental  principles  of 
the  Government ;  and  they  were  manifestly  adopted 
from  superabundant  caution,  inasmuch  as  those  rights 
were  already  sufficiently  guarded  by  the  State  Consti- 
tutions and  bills  of  rights.  The  following,  however, 
may  be  enumerated  as  exceptions,  viz  :  — 

1st.  That  which  prohibits  Congress  from  making  any 

1  Amend.  Const.  U.  S.,  XL  2  JUd.  XH.  3  ihid.  XIU. 


CONSTITUTIONAL  JUMSPKUDENCE.  345 

law  respecting  a  religious  establishment,  prohibiting  the 
free  exercise  of  religious  worship,  or  abridging  the  free- 
dom of  speech  or  of  the  press.^ 

2d.  That  "  the  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  people."  ^     And," 

3d.  That  "the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the 
People."  2 

The  second  of  th^pe  amendments  was  intended  to 
prevent  any  perverse  or  ingenious  misapplication  of  the 
maxim  that  "  an  affirmation  in  particular  cases  implies 
a  negation  in  all  others."  The  one  last  specified  is 
merely  an  affirmation  of  a  necessary  rule  for  the  inter- 
pretation of  the  Constitution  ;  which,  being  an  instru- 
ment of  limited  and  enumerated  powers,  what  is  not 
conferred  by  it  is  withheld,  and  retained  by  the  State 
Governments,  if  vested  in  them  by  their  Constitutions, 
and  if  not  so  vested,  remains  with  the  People,  as  a  part 
of  their  residuary  sovereignty.  This  amendment,  how- 
ever, does  not  confine  the  Federal  Government  to  the 
exercise  of  express  powers  ;  for  implied  powers  must 
necessarily  have  been  admitted,  unless  the  Constitution 
had  descended  to  the  regulation  of  the  minutest  details 
of  legislation.  It  is  a  general  principle,  that  all  bodies 
politic  possess  all  the  powers  incident  to  a  corporate 
capacity,  without  any  express  declaration  to  that  effect ; 
and  one  of  those  defects  of  the  Confederation  which 
led  to  its  abolition,  was  its  prohibiting  Congress  from 
the  exercise  of  any  power  "  not  expressly  delegated." 

1  Amends.  Const.  U.  S.  I.  s  Ibid.  IX.  3  Rid.  X. 


346  LECTURES   ON 

It  could  never,  therefore,  have  been  intended  by  the 
amendment  in  question  to  abridge  any  of  the  powers 
granted  under  the  new  Constitution,  whether  express 
or  implied,  direct  or  incidental.  Its  manifest  and  sole 
design  was  to  exclude  any  interpretation  by  which  other 
powers  should  be  assumed  beyond  those  granted.  All 
the  powers  granted  by  the  Constitution,  whether  ex- 
press or  implied,  direct  or  incidental,  are  left  by  the 
amendment  in  their  original  state,  while  all  powers 
"  not  delegated"  (not  all  powers  "  not  expressly  dele- 
gated") and  not  prohibited  are  reserved. 

In  these,  and  all  the  other  restrictions  on  the  Legis- 
lative powers  of  the  Union,  the  two  great  objects  were 
to  secure  the  rights  of  the  People^  and  to  preserve  the 
Federal  system. 


CONSTITUTIONAL  JUKISPRUDENCE.  347 


LECTURE    XI. 

OF   THE   CONSTITUTIONAL  RESTRICTIONS  UPON  THE  POWERS 
OF    THE   SEVERAL   STATES. 

The  fifth  class  of  provisions  in  favor  of  the  Federal 
authority  consists  of  restrictions  on  the  powers  of  the 
several  States.  These  may  be  distinguished  by  their 
character  as  two  sorts :  the  first  comprehending  those 
limitations  which  are  absolute ;  and  the  second,  such  as 
are  qualified. 

I.  The  former  prohibit  any  State  from  entering  into 
any  treaty  of  alliance  or  confederation ;  from  granting 
letters  of  marque  and  reprisal  ;  from  coining  money, 
emitting  bills  of  credit,  or  making  any  thing  but  gold 
or  silver  coin  a  tender  in  payment  of  debts  ;  from  pass- 
ing any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts  ;  and  from  grant- 
ing any  title  of  nobility.^ 

\st.  The  prohibition  against  treaties,  alliances,  and 
confederations  was  contained  in  the  articles  of  the 
former  union  of  the  States,  and  copied  in  the  new 
Constitution.  It  rests  upon  the  consideration  that  if 
every  State  were  at  liberty  to  enter  into  treaties,  alli- 
ances, and  confederacies  with  foreign  States,  or  with 
other  members  of  the  Union,  the  power  confided  to  the 

1  Const.  U.  S.,  Art.  I.  Sect.  x.  1. 


348  LECTURES   ON 

National  Government  in  regard  to  the  former  would  be 
rendered  nugatory,  while  the  Constitution  itseK  might 
be  subverted  by  the  exercise  of  such  a  power  among 
the  States. 

The  prohibition  of  letters  of  marque  and  reprisal 
was  also  a  part  of  the  old  system,  and  adopted,  but 
with  some  extension,  in  the  new.  According  to  the 
former,  they  might  be  granted  by  the  States,  after  a 
declaration  of  war  by  Congress  ;  under  the  latter,  they 
must  be  obtained,  as  well  during  the  war  as  previously 
to  its  declaration,  from  the  General  Government.  This 
alteration  is  fully  justified  by  the  advantages  of  uni- 
formity, in  all  points  relating  to  foreign  powers ;  and 
by  the  necessity  of  an  immediate  responsibility  to  the 
nation,  in  all  matters  in  which  the  nation  itself  is 
responsible  to  others.  Moreover,  were  it  otherwise,  it 
would  be  in  the  power  of  a  single  State  to  involve  the 
whole  Union  in  war,  at  its  pleasure  ;  and  although  the 
issuing  of  letters  of  marque  is  not  always  designed  as 
a  preliminary  or  provocative  to  war,  yet,  in  its  essence, 
it  is  a  measure  of  hostile  retaliation  for  unredressed 
grievances,  real  or  supposed,  and  is  most  generally  suc- 
ceeded by  open  hostilities. 

2d.  The  prohibition  of  the  States  to  coin  money 
was  necessary  to  give  complete  effect  to  the  power  of 
the  Union  in  relation  to  the  current  coin,  and  arose 
from  a  consideration  of  the  danger  and  facility  of 
circulating  base  or  spurious  coins,  where  the  coins  are 
various  in  value  and  denomination,  and  issued  by  sev- 
eral independent  and  irresponsible  authorities.  Under 
the  Confederation,  it  was  left  in  the  hands  of  the 
States  as  a  concurrent  right,  with  an  exception  in  favor 
of  the  exclusive  right  of  Congress  to  regulate  the  alloy 


CONSTITUTIONAL  JURISPRUDENCE.  349 

and  the  value.  In  this  particulai:,  these  two  provisions 
have  been  found  to  be  an  improvement  on  the  old  ;  for 
while  the  aUoy  and  the  value  depended  on  the  General 
Government,  a  right  of  coinage  in  the  individual  States 
could  have  no  other  effect  than  to  multiply  expensive 
mints,  and  diversify  the  forms  and  weights  of  the  coins 
in  circulation.  The  latter  measure  was  found  to  defeat 
the  purposes  for  which  the  power  was  originally  sub- 
mitted to  the  Federal  authority  ;  and  so  far  as  the 
former  might  prevent  the  easy  remittance  of  gold  and 
silver  to  the  central  mint  for  recoinage,  the  end  can 
be  as  well  attained  by  local  mints  estabUshed  by  the 
General  Government  in  particular  States.  But  the 
general  substitution  of  a  paper  medium  for  a  metallic 
currency  obviates  the  objection  entirely,  and  gives, 
therefore,  greater  importance  to  the  extension  of  the 
prohibition  to  "  bills  of  crediV 

The  loss  which  this  country  had  sustained  between 
the  war  of  the  Revolution  and  the  adoption  of  the 
Federal  Constitution,  from  the  fatal  effects  of  paper 
money  on  public  and  private  confidence,  on  the  indus- 
try and  morals  of  the  people,  the  national  reputation, 
and  the  character  of  Republicanism  itself,  could  be  re- 
deemed in  no  other  way  than  by  the  voluntary  surren- 
der by  the  several  States  of  the  power  which  had  been 
rendered  the  instrument  of  such  profligate  and  destruc- 
tive mischief.  In  addition  to  these  considerations,  the 
same  reasons  which  evince  the  necessity  of  denying  to 
the  individual  States  the  power  of  regulating  the  coin, 
apply  with  equal  force  to  inhibit  them  from  substituting 
a  paper  medium  in  its  place.  Were  every  State  at 
liberty  to  regulate  the  value  of  its  metallic  currency, 
there  would  be  as  many  different  currencies  as  States  ; 
30 


350  LECTURES   ON 

and  thus  the  commercial  intercourse  between  them 
would  be  embarrassed  and  impeded ;  retrospective  alter- 
ations of  the  value  of  its  coin  might  be  made  by  any 
State,  in  fraud  not  only  of  its  own  citizens,  and  those 
of  other  States,  but  of  foreigners,  which  would  not 
merely  interrupt  the  harmony  among  the  States,  and 
engender  animosities  between  them,  but  discredit  and 
compromise  the  Union  with  foreign  nations,  by  the 
indiscretion  or  profligacy  of  a  single  State.  Nor  are 
these  mischiefs  less  incident  to  a  power  in  the  States 
to  emit  biUs  of  credit  than  to  coin  money ;  and  the 
power  to  make  anything  but  gold  or  silver  coin  a 
tender  in  payment  of  debts  is  withdrawn  from  the 
States,  on  the  same  principle  as  that  of  issuing  a  paper 
currency. 

This  restriction  upon  the  power  of  the  States  has 
received  a  construction  of  the  utmost  importance,  both 
to  their  individual  rights  and  the  authority  of  the  Fed- 
eral Government.  It  has  been  ruled  by  the  Supreme 
Court,  that  although  the  term  "  bills  of  credit,'-  in  its 
enlarged,  and,  perhaps,  in  its  literal  sense,  may  compre- 
hend any  instrument  by  which  a  State  engages  to  pay 
money  at  a  future  day,  thereby  including  a  certificate 
given  for  money  borrowed,  yet  that  the  language  of 
the  Constitution,  and  the  mischief  intended  to  be  pre- 
vented, equally  limit  its  interpretation.  The  word 
"  emit,"  it  was  observed,  is  never  employed  in  describ- 
ing those  contracts  by  which  a  State  binds  itself  to 
pay  money  at  a  future  day,  for  services  actually  re- 
ceived, or  money  borrowed  for  immediate  use.  Nor 
are  instruments  executed  for  such  purposes  denomi- 
nated in  common  language  "  bills  of  credit."  To  emit 
bills  of  credit  conveys  to  the  mind  the  idea  of  issuing 


CONSTITUTIONAL  JUEISPKUDENCB.  351 

paper,  redeemable  at  a  future  day,  in  anticipation 
of  the  public  resources,  and  intended  to  circulate  as , 
money .1  This  is  the  sense,  indeed,  in  which  the  terms 
have  always  been  understood,  and  in  which  they  were 
interpreted  by  the  Court.  The  Constitution,  moreover, 
considers  the  emission  of  bills  of  credit,  and  the  enact- 
ment of  tender  laws,  as  distinct  operations,  which  may 
be  separately  performed,  independently  of  each  other. 
Both  acts  are  forbidden  ;  and  to  affirm,  as  has  been 
done  in  some  of  the  States,^  that  bills  of  credit  may  be 
emitted,  if  not  made  a  legal  tender,  is,  in  effect,  to 
expunge  that  distinct  and  independent  prohibition,  and 
to  read  the  Constitution  as  if  that  branch  of  the  clause 
had  been  omitted.  But  there  is  too  much  reason  to 
fear  that  such  an  expedient  has  since  been  resorted 
to,  or,  rather,  that  a  successful  attempt  has  been  made 
to  elude  this  wholesome  restriction. 

The  Legislature  of  Kentucky,  in  the  year  1820, 
passed  an  Act  establishing  a  bank,  and  constituting 
the  president  and  directors  a  corporation,  with  a  capital 
consisting  of  all  moneys  paid  into  the  treasury  of  the 
State  for  the  sale  of  its  vacant  lands,  and  other  prop- 
erty. The  bank  was  authorized  to  receive  money  on 
deposit,  to  make  loans,  and  issue  promissory  notes ;  and 
was  the  exclusive  property  of  the  State.  In  relation  to 
this  bank,  thus  constituted,  with  such  a  capital,  and  so 
owned,  it  was  held  that  its  notes  thus  issued  were  not 
bills  of  credit  within  the  meaning  of  the  Constitution.^ 
It  was  admitted,  indeed,  that  to  constitute  a  hill  of 
credit  within  the  purview  of  the  prohibition,  it  must  be 
issued  by  a  State,  on  the  faith  of  a  State,  and  designed 

1  4  Paers,  431.  2  g  Ibid.  40.  3  n  lUd.  257. 


352  LECTURES   ON 

to  circulate  as  money ;  that  the  paper  which  it  issues 
must  circulate  on  the  credit  of  the  State,  and  be  so 
received  and  used  in  the  ordinary  business  of  life ;  that 
the  persons  issuing  it  must  have  power  to  bind  the 
State;  they  must  act  as  agents,  and,  of  course,  not 
incur  any  personal  responsibility,  nor  impart  as  indi- 
viduals any  credit  to  the  paper.  These  were  admitted 
to  be  the  leading  characteristics  of  a  bill  of  credit,  and 
yet  the  notes  issued  by  this  "  Bank  of  the  Common- 
wealth of  Kentucky"  —  for  such,  moreover,  was  its 
title — were  held  not  to  be  bills  of  credit  within  the 
meaning  of  the  Federal  Constitution.  Before  we  as- 
sent to  this  conclusion,  let  us  bring  the  question  to  the 
test  merely  of  the  characteristics  specified  by  the  Court. 
These  shall  serve  as  interrogatories,  to  which  answers 
will  be  drawn  from  its  own  statement  of  the  facts. 

1st.  Were  the  notes  of  this  bank  issued  by  the 
State  ? 

Answer.  The  bank  was  established  by  the  State ; 
its  capital  consisted  of  the  funds  of  the  State,  and  it 
was  authorized  by  the  State  to  issue  its  notes. 

2d.  Did  its  paper  circulate  on  the  credit  of  the 
State  ? 

Ans.  Its  issues  were  founded  on  its  capital,  which 
was  the  property  of  the  State. 

Zd.  Had  the  persons  who  issued  its  notes  authority 
to  bind  the  State  ? 

Ans.  The  bank  was  the  property  of  the  State,  who 
named  or  appointed  its  directors  in  the  Act  of  incor- 
poration. 

^th.  Did  the  directors  or  officers  of  the  bank  act  as 
agents  of  the  State,  without  incurring  personal  respon- 
sibility ? 


CONSTITUTIONAL  JURISPRUDENCE.  353 

Ans.  Of  course.  There  was  no  other  stockholder 
than  the  State ;  and  they  could  not  have  acted  on  any 
other  responsibihty  to  the  public  than  that  of  the  State, 
as  they  were  not  made  personally  responsible  as  prin- 
cipals by  the  act  of  incorporation. 

5th.  Did  the  directors  or  officers  of  the  bank  impart 
any  credit,  as  individuals,  to  the  notes  of  the  bank  ? 

Ans.  No  other  than  is  imparted  by  the  signatures  of 
the  officers  of  every  other  bank.  It  is  to  the  capital  of 
the  bank,  and  to  the  responsibility  of  the  stockholders, 
that  the  public  look  for  security,  and  not  to  the  persons 
whose  official  signatures  are  affixed  to  its  notes. 

K  there  be  any  "  other  matter  or  thing  "  which  may 
be  put  by  way  of  general  interrogatory,  the  answer  is 
obvious  :  "  Qui  facit  per  alium,  facit  per  se."  In  short, 
if  a  State  wishes  to  evade  the  Constitution  and  emit 
biUs  of  credit,  it  has  merely  tb  incorporate  its  public 
officers,  or  other  agents,  as  a  bank,  and  thus  render  a 
prohibition  intended  to  prevent  a  recurrence  of  those 
evils,  which  had  been  found  from  experience  to  attend 
the  practice,  a  dead  letter.^ 

Sd.  It  is  a  principle  of  universal  jurisprudence,  that 
laws,  civil  or  criminal,  must  be  prospective,  and  cannot 
ordinarily  have  a  retroactive  effect.  Bills  of  attainder, 
ex  post  facto  laws,  and  laws  impairing  the  obligation  of 
contracts,  are,  therefore,  contrary  to  the  first  principles 
of  the  social  contract,,  and  to  every  principle  of  sound 
legislation.     The  two  former  are  expressly  prohibited  to 

1  The  decision  in  this  ease  was  made  after  the  death  of  Chief 
Justice  Marshall,  and  the  opinion  of  the  Court  delivered  by  Mr. 
Justice  M'Lean ;  Mr.  Justice  Thompson  concurring,  and  Mr.  Justice 
Story  dissenting.  This  decision  was  confirmed  in  a  subsequent  case. 
13  Howard,  12. 

30* 


354  LECTURES   ON 

Congress  by  the  Federal  Constitution,  and  to  some  of 
the  State  Legislatures,  by  declarations  of  rights  pre- 
fixed to  their  Constitutions.^  The  framers  of  the  Fed- 
eral compact  were,  nevertheless,  admonished  by  their 
own  experience,  of  the  necessity  of  additional  bulwarks 
in  favor  of  personal  security  and  private  rights ;  and 
the  experience  of  their  successors  has  shown  that,  in 
imposing  these  restrictions,  the  Convention  maintained 
its  character  for  strict  integrity,  high  moral  sense,  and 
sound  practical  wisdom. 

Bills  of  attainder  are  such  special  acts  of  the  Legis- 
lature as  inflict  capital  punishment  upon  persons  whom 
they  declare  to  be  guilty  of  high  offences,  without  trial 
or  conviction  in  the  ordinary  course  of  Judicial  pro- 
ceedings. They  have  generally  been  confined  to  cases 
of  treason,  and  have  never  been  resorted  to  but  in 
times  of  internal  commotion  and  arbitrary  misgovem- 
ment.  If  the  bill  inflict  a  milder  punishment  than 
death,  it  is  called  a  bill  of  pains  and  penalties  ;  but,  in 
the  sense  of  the  Constitution,  bills  of  attainder  include 
bills  of  pains  and  penalties,  as  the  former  may  affect 
the  life  of  an  individual,  or  may  confiscate  his  property, 
or  both. 

1  The  Bill  of  Rights  prefixed  to  the  Constitution  of  New  Hamp- 
shire declares  that  retrospective  laws  are  injurious,  oppressive,  and 
unjust,  and  ought  not  to  be  made.  Within  the  intent  and  meaning 
of  this  article,  every  statute  which  takes  away  or  impairs  vested  rights 
acquired  under  existing  laws,  or  creates  a  new  obligation,  imposes  a 
new  duty,  or  attaches  a  new  disability  in  respect  to  transactions  already 
past  must  be  deemed  retrospective.  Per  Story,  J.,  2  Gallis,  139.  See 
also  5  Yerg.  320;  1  Ibid.  360;  7  Johis.  Rep.  477;  18  Ihid.  138;  3 
DaU.  381,  386 ;  2  Root,  350;  2  Pick.  165,  170,  172  ;  11  Ibid.  28 ;  9 
Mass.  363  \  B  N.  H.  475  ;  5  Monr.  133  ;  7  Johns.  Rep.  488 ;  2  Peters, 
861 ;  8  Ibid.  110  ;  1  Blackf.  193,  196  ;  6  Binn.  271 ,  1  J.  J.  Marsh, 
563;  3  Cowen,  347;  Harper,  88;  2  Gallis.  105;  1  Yerg.  360. 


CONSTITUTIONAL  JURISPRUDENCE.  355 

Ex  post  facto  laws  are  often  supposed  to  signify  all 
laws  having  a  retroactive  operation.  Every  ex  post 
facto  law  must  necessarily  be  retrospective,  but  every 
retrospective  law  is  not  an  ex  post  facto  law.  The 
terms  are  not  synonymous  ;  and  the  technical  mean- 
ing of  the  latter  is  confined  to  such  as  render  criminal 
an  act  done  before  the  law  was  passed,  which  was  then 
innocent ;  or  to  such  as  aggravate  the  offence,  or  render 
it  more  criminal  than  it  was  when  committed  ;  or  such 
as  inflict  a  greater  punishment  than'the  law  annexed  to 
the  crime  when  perpetrated ;  or  such  as  alter  the  rules 
of  evidence,  and  admit  different  or  less  testimony  than 
was  required  at  the  time  the  offence  was  committed,  to 
convict  the  offender.  With  more  comprehensive  brevity, 
these  laws  have  been  defined  by  Chief  Justice  Marshall 
as  "  those  which  render  an  act  punishable  in  a  manner 
in  which  it  was  not  punishable  when  committed ;"  and 
this  definition  includes  both  laws  inflicting  personal  or 
pecuniary  penalties  for  acts  before  innocent,  and  laws 
passed  after  the  commission  of  an  unlawful  act,  which 
enhance  its  guilt  or  aggravate  its  punishment. 

The  Constitution  of  the  United  States  does  not 
prohibit  the  States  from  passing  retrospective  laws 
generally,  but  only  ex  post  facto  laws.^  Hence  the 
Supreme  Court  of  the  United  States  cannot  pronounce 
an  Act  of  a  State  Legislature  void,  merely  because 
such  Act  divests  antecedent  vested  rights  of  property .^ 

4cth.  A  simila'r  restriction  with  regard  to  bills  of  at- 
tainder and  ex  post  facto  laws  is  imposed  by  the 
Constitution  on  Congress,  as  well  as  upon  the  State 
Legislatures  ;  but  not  with  regard  to  laws  impairing-  the 

1  8  Peters,  110 ;  2  Ibid.  414  ;  1  Bald.  74.  2  n  Peters,  420. 


356  LECTURES   ON 

obligation  of  contracts,  which  are  also  retrospective  in 
their  operation,  and  equally  inconsistent  with  sound 
legislation,  and  the  fundamental  principles  of  the  social 
compact. 

The  reason  of  this  difference  is  obvious.  By  con- 
tracts, in  the  sense  of  the  Constitution,  we  are  to 
understand  every  executed  agreement,  whether  between 
individuals,  or  between  individuals  and  a  State,  by 
which  a  right  is  vested ;  and  also  every  executory  agree- 
ment which  confers  a  right  of  action,  or  creates  a  bind- 
ing obligation  in  relation  to  subjects  of  a  valuable 
nature,  which  may  be  asserted  in  a  court  of  justice ; 
but  it  does  not  comprehend  the  political  relations  be- 
tween a  Government  and  its  citizens.  The  power 
possessed  by  a  State  Legislature  to  which  every  thing 
not  expressly  reserved  is  granted,  and  the  temptations 
to  abuse  that  power,  render  express  restrictions,  if  not 
absolutely  necessary,  at  least  prudent  and  useful ;  but 
the  National  Legislature  has  no  power  to  interfere  with 
contracts,  except  where  it  is  expressly  given  to  it.  By 
the  obligation  of  contracts,  in  the  meaning  and  intend- 
ment of  the  Constitution,  is  understood  not  merely  the 
moral,  but  the  legal  obligation.  Nor  is  it  an  obligation 
arising  from  the  universal  law  of  civilized  nations  ;  but 
that  which  results  from  the  laws  of  the  State  where 
the  contract  is  made ;  ^  and  in  this  sense,  a  system  of 
bankruptcy  impairs  the  obligation  of  contracts  when  it 
releases  the  party  from  the  necessity  of  performing 
them  ;  but  Congress  is  expressly  invested  with  this 
power  in  regard  to  bankruptcies,  as  an  enumerated,  and 
not  as  an  implied  power,  and  in  no  other  form  can  it 
impair  the  obligation  of  a  contract. 

1  12  Wheat.  213. 


CONSTITUTIONAL  JURISPRUDENCE.  367 

This  prohibition  in  regard  to  the  States  extensively 
and  deeply  affects  their  Legislative  authority;  and  there 
is  no  part  of  the  Federal  Constitution  that  has  given 
rise  to  more  various  and  able  discussions,  or  to  more 
obstinate  and  protracted  litigation.  Contracts  executed, 
as  well  as  executory,  are  included  in  it ;  not  only  con- 
veyances of  land,  public  grants  from  a  State  to  corpo- 
rations or  individuals,  grants  and  charters  in  existence 
w^hen  the  Federal  Constitution  was  adopted,  but  even 
those  existing  before  the  Revolution  ;  and  contracts  be- 
tween the  different  States  themselves.^  But  the  clause 
in  question  does  not  extend  to  a  State  law  enacted 
before  the  Constitution  commenced  its  operation,  though 
such  law  operate  on  rights  of  property  vested  before 
that  time.2  A  compact  between  two  States,  or  a  grant 
from  a  State  (which  amounts  to  a  contract)  to  indi- 
viduals, is  as  much  protected  by  it  as  a  grant  from  one 
individual  to  another,  and  the  State  is  as  effectually 
inhibited  from  impairing  its  own  contracts,  or  those  to 
which  it  is  a  party,  as  it  is  from  impairing  the  obliga- 
tion of  a  contract  between  two  individuals.  And  the 
rule  for  determining  these  questions  in  the  Courts  of 
the  United  States,  is  of  an  international  character ;  and 
is  not  to  be  collected  from  the  decisions  of  the  Courts 
of  either  of  the  States  who  are  parties  to  the  compact.^ 

The  clause  under  consideration  was  first  brought  into 
direct  judicial  discussion  by  an  Act  of  the  Legislature 
of  Georgia,  passed  in  the  year  1795.  This  Act  author- 
ized the  sale  of  a  large  tract  of  wUd  land,  in  what  was 

1  6  CrancTi,  137;  9  Ibid.  52;  2  Haytv.  SIO,  374;  4  WJieat.  641, 
651 ;  8  Ibid.  1 ;  4  GUI  8f  Johns.  1. 

2  5  Wheat.  420.  3  n  Peters,  22. 


368  LECTURES   ON 

called  the  Yazoo  country,  and  a  grant  was  made  in 
pursuance  of  the  law,  to  a  number  of  individuals,  under 
the  name  of  the  "  Georgia  Company."  But  by  an  Act 
passed  the  next  year,  the  Legislature  declared  its  pre- 
vious grant  to  be  nuU  and  void,  on  the  ground  of  fraud 
and  corruption  in  obtaining  it.  One  of  the  questions 
presented  to  the  Supreme  Court  of  the  United  States 
for  decision  arose  upon  a  sale  to  a  third  person,  by  a 
grantee  of  the  State  under  the  first  Act,  and  it  was 
this  :  Whether  the  Legislature  of  Georgia  had  the 
constitutional  power  to  repeal  the  former  law,  and 
avoid  the  sale  made  under  its  authority.  The  Court 
declared  that,  when  a  law  in  its  nature  imports  a 
contract,  and  absolute  rights  have  vested  under  it,  its 
repeal  could  neither  divest  those  rights,  nor  annihilate 
or  impair  the  title  thus  acquired.'  A  party  cannot 
pronounce  his  own  deed  invalid,  whatever  cause  may 
be  assigned  to  impeach  it,  although  that  party  be  the 
Legislature  of  a  State.  It  was  accordingly  declared 
that  an  estate  held  under  the  Act  of  1795,  having 
passed  into  the  hands  of  a  bond  fide  purchaser  for  a 
valuable  consideration,  the  State  of  Georgia  was  dis- 
abled by  the  Constitution  from  passing  any  law  by 
which  that  estate  could  be  legally  impaired  and  ren- 
dered void. 

The  next  case  in  which  this  prohibition  was  brought 
in  review  was  from  the  State  of  New  Jersey ;  on  which 
occasion  it  was  held  that,  where  a  State  Legislature 
declared  by  law  that  certain  lands  to  be  purchased  for 
the  use  of  certain  Indians  should  not  be  subject  to  taxa- 
tion, such  Act  amounted  to  a  contract,  which  could  not 

1  6  CrancTi,  87. 


CONSTITUTIONAL  JURISPKUDENCE.  859 

be  rescinded  by  a  subsequent  Legislature.^  In  this 
case  the  Colonial  Legislature,  in  1758,  authorized  a 
purchase  of  lands  for  the  Delaware  Indians,  and  made 
the  stipulation  mentioned.  The  Indians  occupied  the 
land  in  pursuance  of  the  law  until  the  year  1803,  when 
it  was  sold  under  the  authority  of  the  Legislature.  In 
1804,  the  Legislature  repealed  the  Act  exempting  the 
land  from  taxation ;  but  the  Act  of  1758  was  held  to 
be  a  contract,  and  that  of  1804  a  breach  of  it,  and  it 
was  accordingly  declared  void,  under  the  Constitution 
of  the  United  States;  thereby  at  once  confirming  the 
former  decision,  and  recognizing  the  principle  alluded 
to  in  a  former  Lecture,  that  a  change  of  Government 
does  not  affect  the  previously  vested  rights  of  property. 

In  a  subsequent  case  from  the  State  of  Virginia,  the 
same  points  again  arose,  and  the  Court  went  more 
largely  into  the  consideration  of  this  delicate  and  in- 
teresting constitutional  doctrine,  not  only  establishing 
the  last-mentioned  principle  in  regard  to  the  effect  of 
the  Revolution  on  prior  contracts,  but  at  the  same  time 
declaring  that  a  Legislative  grant,  competently  made, 
vested  an  indefeasible  and  irrevocable  title.^ 

There  is,  indeed,  no  authority  which  can  support  on 
principle  the  contrary  position.  The  Legislature  of  a 
State  cannot  repeal  statutes  creating  private  corpora- 
tions, or  confirming  to  them  property  acquired  under 
the  faith  of  previous  laws,  and,  by  such  repeal,  vest  it  in 
others,  without  the  consent  or  default  of  the  corporators. 
Nor  can  rights  legally  vested  in  any  corporation  be 
controlled  or  destroyed  by  a  subsequent  statute,  unless 
power  for  that  purpose  be  expressly  reserved  to  the 

1  7  Cranch,  164.  8  9  Ibid.  43. 


360  LECTURES   ON 

Legislature  in  the  Act  of  incorporation.^  This  rule 
applies  as  well  to  implied  as  to  express  powers.^  A 
contrary  doctrine  would  be  equally  repugnant  to  the 
letter  and  spirit  of  the  Constitution,  and  to  the  princi- 
ples of  natural  justice.  But  the  charter  of  any  corpo- 
rate body  may  be  altered  in  its  most  essential  features, 
by  the  Legislature  granting  it,  if  the  alteration  be 
agreed  to  by  the  corporators  either  before  or  after  the 
Act  making  the  alterations.^ 

Where  the  legal  interest  in  literary  or  charitable  in- 
stitutions is  vested  by  law  in  trustees  in  order  to 
promote  the  objects  for  which  they  were  incorporated, 
and  donations  made  to  them,  they  are  considered  within 
the  protection  of  the  Constitution;  and  it  was  in  the 
great  case  of  Dartmouth   College  that  this  inhibition 


1  2  Mass.  146.  2  9  Wend.  351. 

3  1  Rawle,  190  ;  1  Monr.  5.  An  apt  illustration  of  the  refined  legal 
notion  of  property,  to  which  this  provision  applies,  is  afforded  in  the 
right  which  the  representative  of  a  person  deceased  has  to  the  dispo- 
sition of  the  corpse  in  case  of  its  removal.  This  right  was  drawn  in 
question  by  proceedings  instituted  in  the  Supreme  Court  of  New  York 
for  removing  a  cemetery  and  its  contents  ;  when  the  question  was  re- 
ferred to  Samuel  B.  Ruggles,  Esq.,  already  mentioned  as  an  eminent 
member  of  the  bar.  In  his  "  Report " —  which  was  adopted  by  the 
Court  —  the  "Law  of  Burial"  is  examined  and  discussed  in  a 
manner  at  once  elaborate  and  lucid,  and  with  equal  learning  and  in- 
genuity. He  thoroughly  explores  the  grounds  of  both  the  Common 
and  the  Ecclesiastical  Law  of  England  relating  to  the  subject ;  and 
pcnnts  out,  with  great  clearness  and  precision,  the  modifications  they 
have  received  in  this  country  from  the  Revolution,  and  consequent 
separation  of  Church  and  State.  This  remarkable  document  forms 
a  complete,  as  well  as  a  luminous  and  recondite  treatise,  of  an 
original  character  and  permanent  value,  upon  a  branch  of  national 
jurisprudence  which  its  author  may  be  said,  indeed,  to  have  created. 


CONSTITUTIONAL  JURISPRUDENCE.  361 

upon  the  States  received  the  most  elaborate  discussion, 
and  the  most  efficient  and  instructive  application.^  It 
was  there  decided  that  the  charter  granted  by  the 
British  Crown  to  that  institution  in  1769,  was  a  con- 
tract within  the  meaning  of  the  Constitution,  and  pro- 
tected by  the  clause  in  question.  It  was  held  that  the 
College  was  a  private  charitable  institution,  not  liable 
to  Legislative  control,  and  that  a  law  of  New  Hamp- 
shire altering  the  charter  in  a  material  point,  without 
the  consent  of  the  corporation,  was  a  "  law  impairing 
the  obligation  "  of  the  charter,  and  it  was  consequently 
declared  to  be  unconstitutional  and  void.  Chief  Justice 
Marshall,  in  delivering  the  opinion  of  the  Court,  ob- 
served, "  that  Dartmouth  College  was  a  private  elee- 
mosynary institution,  endowed  with  a  capacity  to  take 
and  hold  property  for  objects  unconnected  with  Govern- 
ment. Its  funds  were  bestowed  by  individuals  on  the 
faith  of  the  charter,  and  consisted  entirely  of  private 
donations.  The  corporation  was  not  invested  with  any 
portion  of  political  power,  nor  did  it,  in  fact,  partake  in 
any  degree  in  the  administration  of  civil  government. 
It  was  instituted  as  a  private  corporation  for  general 
charity ;  and  the  charter  was  a  contract  to  which  the 
donors,  the  trustees,  and  the  Crown  were  the  original 
parties,  and  it  was  made  on  a  valuable  consideration 
for  the  security  and  disposition  of  property." 

The  legal  interest  in  every  literary  and  charitable 
institution  is  vested  in  trustees,  to  be  asserted  by  them, 
and  they  claim  or  defend  in  behalf  of  the  object  to 
promote  which  the  corporation  was  created  and  the 
donations  made.     Contracts  of  this  kind  are  most  rea- 

1  4  Wheat.  518, 

31 


362  LECTUBES   ON 

sonably  considered  within  the  purview  and  protection 
of  the  Constitution.  The  one  in  question  remained 
unchanged  by  the  Revolution,  and  the  duties  as  well 
as  the  powers  of  the  former  Government  devolved  on 
the  people  of  New  Hampshire.  But  the  law  of  that 
State  transferred  the  whole  power  of  governing  the 
college  from  the  trustees,  under  the  charter,  to  the  Ex- 
ecutive of  New  Hampshire ;  and  the  will  of  the  State 
was  thereby  substituted  for  the  will  of  the  donors,  in 
every  essential  operation  of  the  college.  The  charter 
was  reorganized  in  such  a  manner  as  to  convert  a 
literary  institution,  moulded  according  to  the  will  of 
its  founders,  into  a  machine  entirely  subservient  to  the 
will  of  the  State.  A  proceeding  thus  subversive  of  the 
contract  on  the  faith  of  which  the  donors  invested  their 
property  was,  consequently,  held  to  be  repugnant  to 
the  Constitution.  This  celebrated  case,  it  has  been 
well  said,'  "  contains  one  of  the  most  full  and  elaborate 
expositions  of  the  constitutional  sanctity  of  contracts 
anywhere  to  be  met  with  ;  and  has  done  more  than  any 
other  single  act  proceeding  from  the  authority  of  the 
United  States  to  throw  an  impregnable  barrier  around 
all  rights  and  franchises  derived  from  the  grant  of 
Government,  and  to  give  solidity  and  inviolability  to 
the  literary,  charitable,  and  commercial  institutions  of 
the  country."  ^ 

In  another  case,  in  which  this  prohibitory  clause  of 
the  Federal  Constitution  came  again  under  discussion, 

1  1  Kent's  Comm.  389, 

2  The  Supreme  Court  of  North  Carolina  declared  unconstitutional 
and  void,  an  Act  of  the  Legislature  repealing  a  grant  of  land  to  the 
University  of  that  State.  2  Hayw.  310  ;  Murphy,  58.  See  also  2 
McCord,  354. 


CONSTITUTIONAL  JURISPRUDENCE.  863 

it  was  observed  by  the  Court  that  the  objection  to  a 
law,  on  the  ground  of  its  impairing  the  obligation  of 
contracts,  did  not  depend  on  the  extent  of  the  change 
effected  by  the  law;  any  deviation  from  the  terms  of 
the  contract,  by  accelerating  or  postponing  the  period 
of  performance,  which  the  latter  prescribes,  imposing 
conditions  not  expressed  in  it,  or  dispensing  with  the 
performance  of  those  which  are,  however  minute  or 
apparently  immaterial  or  partial  in  their  effect  on  the 
contract,  impairs  its  obligation.  Another  material  point 
decided  on  this  occasion  was,  that  a  compact  between 
two  States  was  a  contract  within  the  constitutional 
prohibition.^ 

Another  case,  which  led  to  a  very  extensive  inquiry 
into  the  operation  of  this  constitutional  restriction,  arose 
under  an  Insolvent  Ant  of  New  York,  passed  in  1811. 
This  law  was  retrospective,  and  discharged  the  debtor, 
upon  his  single  petition  and  the  surrender  of  his  prop- 
erty, without  the  concurrence  of  any  creditor,  from  all 
preexisting  debts,  and  from  all  liability  and  responsi- 
bility by  reason  of  them.  The  Court  on  this  occasion 
recognized  the  doctrine  adverted  to  in  a  former  Lecture, 
that  until  Congress  exercise  its  power  on  the  subject 
of  bankruptcy,  the  individual  States  may  pass  bankrupt 
laws,  provided  they  contain  no  provision  violating  the 
obligation  of  contracts.  It  was  admitted  that  the  States 
might  discharge  debtors  from  imprisonment,  because 
imprisonment  is  no  part  of  the  contract,  but  only  a 
means  for  coercing  its  performance.  It  was  also  ad- 
mitted that  a  State  may  pass  statutes  of  limitations,  as 
they  are  termed,  for  these  also  relate  only  to  the  remedy, 

1  8  Wheat.  1. 


364  LECTURES    ON 

and  not  to  the  obligation  of  the  contract ;  and  it  was 
stated  that  the  insolvent  laws  of  far  the  greater  number 
of  States  only  discharged  the  person  of  the  debtor,  and 
left  the  obligation  in  full  force.  But  a  law  which  dis- 
charged the  debtor  from  his  contract,  and  released  him 
without  payment,  impaired,  because  it  entirely  dis- 
charged the  obligation  of  the  contract ;  for  it  is  to  be 
observed  that  there  is  an  obvious  distinction  in  the 
nature  of  things,  between  the  obligation  of  a  contract, 
and  the  remedy  to  enforce  it.  The  latter  may  be  modi- 
fied as  the  wisdom  of  the  Legislature  may  direct.  But 
the  Constitution  intending  to  restore  and  preserve  com- 
pletely the  public  credit  and  confidence,  established  as 
a  fundamental  principle,  that  the  former  shall  be  in- 
violable.i 

The  case  in  which  the  above  decision  was  made,  had 
arisen  in  a  Federal  Court,  and  the  contract  existed 
when  the  State  law  was  passed  ;  but  it  was  afterwards 
held  that  there  was  no  difference  when  the  suit  is 
brought  in  a  Court  of  a  State,  of  which  both  parties 
are  citizens,  and  in  which  the  contract  was  made,  and 
the  discharge  obtained,  and  where  the  parties  continue 
to  reside  until  the  suit  be  brought.^  A  distinction, 
however,  was  taken  in  the  Courts  of  New  York  and 
Massachusetts,  between  a  contract  made  before,  and 
one  made  after  the  passing  of  the  State  law.^  The 
doctrine  they  maintained  was  this,  that  an  insolvent 
Act  in  force  when  the  contract  was  made,  did  not,  in 
the  sense  of  the  Constitution,  impair  its  obligation, 
because  the  parties  to  every  contract  have  reference  to 

1  4  Wheat.  122.  2  6  Ihid.  131. 

3  16  Johns.  Rep.  233 ;  7  Johns.  Ch.  Rep.  297  ;  13  Mass.  1. 


CONSTITUTIONAL  JURISPRUDENCE.  865 

the  existing  laws  of  the  country  where  it  is  made,  and 
are  presumed  to  make  their  contracts  in  reference  to 
them.  This  distinction  was  supposed  to  be  consistent 
with  the  decision  of  the  Supreme  Court  of  the  United 
States.  But  in  a  subsequent  case,  where  the"  discharge 
was  under  an  insolvent  law  of  a  different  State  from 
that  in  which  the  contract  was  made,  the  Supreme 
Court  went  a  step  further,  and  held  that  a  discharge 
under  such  a  law  existing  when  the  debt  was  con- 
tracted, was  equally  within  the  principle  before  estab- 
lished.i 

It  remained,  however,  to  be  settled  whether  a  State 
could  constitutionally  pass  an  insolvent  law  which 
should  effectually  discharge  the  debtor  from  a  debt 
contracted  after  the  passing  of  the  Act,  and  within  the 
State  in  which  the  law  w^as  passed.  The  general  lan- 
guage of  the  Court  on  the  last  occasion,  seemed  to 
reach  this  case;  but  the  facts  on  which  the  question 
then  arose,  did  not  cover  the  whole  ground.  The  de- 
cision, therefore,  was  not  authority  to  the  extent  men- 
tioned ;  and  it  was  subsequently  ruled  by  a  bare 
majority  of  the  Court,  and  after  much  apparent  hesi- 
tation, that  a  bankrupt  or  insolvent  law  of  a  State, 
discharging  both  the  person  of  the  debtor,  and  hia 
future  acquisitions  of  property,  is  not  a  law  "  impairing 
the  obligation  of  contracts,"  in  respect  to  debts  con- 
tracted within  the  State,  subsequently  to  its  enactment.^ 

The  venerable  Chief  Justice  Marshall  was  among 
the  minority  of  the  Court,  and  delivered  the  reasons 
for  their  dissent.  He  admitted  that  none  of  the  former 
decisions  comprehended  the  question  then  presented, 

1  4  Wheat.  209.  2  i2  Jbid.  213. 

31  • 


366  LECTURES   ON 

and  that,  consequently,  it  was  an  open  one.  He  also 
admitted  that  there  was  an  essential  difference  in  prin- 
ciple between  laws  which  act  on  past  or  future  con- 
tracts; and  that  while  those  of  a  former  description 
could  seldom  be  justified,  those  of  the  latter  were 
proper  subjects  of  ordinary  Legislative  discretion.  A 
constitutional  restriction,  therefore,  on  the  power  to 
pass  laws  of  the  one  class,  might  very  well  consist  with 
entire  Legislative  freedom  in  regard  to  the  other.  Yet, 
when  we  consider  the  nature  of  the  Union ;  that  it  was 
intended  to  make  us,  in  a  great  measure,  one  people 
as  to  commercial  objects ;  that  so  far  as  respects  the 
intercommunication  of  individuals,  the  lines  of  separa- 
tion between  States  are  in  many  respects  obliterated, 
it  would  be  matter  of  surprise  if,  on  the  delicate  subject 
of  contracts  actually  formed,  the  interference  of  State 
legislation  should  not  be  greatly  abridged,  or  entirely 
forbidden.  In  the  nature  of  the  existing  provision, 
then,  there  seems  to  be  nothing  which  should  induce 
us  to  adopt  the  limited  construction  which  had  been 
given  in  that  case  to  the  prohibitory  clause. 

The  former  part  of  the  section,  comprehending  the 
prohibition,  enumerates  the  cases  in  which  the  action 
of  the  State  Legislatures  is  absolutely  and  entirely 
forbidden ;  while  the  latter  part  specifies  those  in  which 
the  prohibitions  are  qualified.  The  former  comprehends 
two  classes  of  powers ;  those  of  the  first  class  are  po- 
litical and  general  in  their  nature,  consisting  in  the 
exercise  of  sovereignty  without  affecting  the  rights  of 
individuals ;  while  the  second  class  comprehends  those 
laws  which  operate  upon  individuals, —  and  includes, 
among  others,  "  laws  impairing  the  obligation  of  con- 
tracts."    In   all   the   cases  embraced  in   both   classes. 


CONSTITUTIONAL  JURISPRUDENCE.  867 

whether  the  thing  prohibited  be  the  exercise  of  mere 
political  legislation,  or  Legislative  action  upon  indi- 
viduals, the  prohibition  is  complete  and  total.  Legisla- 
tion of  every  description  on  those  subjects  is,  without 
any  exception,  comprehended  and  forbidden.  A  State 
is  as  entirely  prohibited  from  passing  laws  impairing 
the  obligation  of  contracts  as  from  making  treaties  or 
coining  money.  So  much  of  the  prohibition  as  re- 
strains the  power  of  the  State  to  punish  offenders  in 
criminal  cases,  and  inhibits  bills  of  attainder  and  ex 
post  facto  laws,  is,  in  its  very  terms,  confined  to  pre- 
existing cases.  But  that  part  of  the  clause  which 
relates  to  the  civil  transactions  of  individuals  is  ex- 
pressed in  more  general  terms  —  in  terms  which  compre- 
hend, in  their  ordinary  acceptation,  cases  which  occur 
after,  as  well  as  before  the  passing  of  the  Act.  It 
forbids  a  State  to  make  anything  but  gold  or  silver 
coin  a  tender  in  payment  of  debts,  or  to  pass  any  law 
impairing  the  obligation  of  contracts.  These  prohi- 
bitions relate  to  kindred  subjects ;  they  contemplate 
Legislative  interference  with  private  rights,  and  restrain 
such  interference.  In  construing  that  part  of  the  clause 
which  respects  tender  laws,  a  distinction  has  never  been 
attempted  between  debts  existing  at  the  time  the  law 
was  passed  and  those  afterwards  contracted.  The  pro- 
hibition in  that  case  is  total;  and  yet  the  difference 
in  principle  between  making  property  a  tender  in  pay- 
ment of  debts  contracted  after  the  passage  of  the  Act, 
and  discharging  those  debts  without  payment  or  by  a 
surrender  of  property ;  iri  other  words,  between  an  abso- 
lute and  a  contingent  right  to  tender  in  payment,  is  not 
clearly  discernible.  Nor  is  the  dift'erence  in  language 
so  obvious  as  to  denote  plainly  a  difference  of  intention 


368  LECTURES   ON 

in  the  framers  of  the  Constitution.  The  same  train  of 
reasoning  which  would  confine  the  words  relative  to 
contracts  to  those  contracts  only  which  existed  at  the 
passage  of  the  law,  would  go  far  in  limiting  those 
relative  to  a  tender  in  payment  of  debts  to  such  as 
previously  existed ;  yet  the  distinction  between  these 
and  such  as  were  contracted  subsequently  to  the  law 
seems  never  before  to  have  occurred  to  any  expounder 
of  the  Constitution,  and  would  unquestionably  defeat 
the  object  of  the  clause. 

A  point  of  greater  difficulty,  and  that  upon  which 
the  decision  of  the  question  appears  to  have  turned, 
was  the  nature  of  the  original  obligation  of  the  con- 
tract made  after  the  passage  of  such  an  insolvent  law ; 
whether  it  were  unconditional  to  perform  the  very  act 
stipulated;  or  whether  a  condition  were  implied  that, 
in  the  event  of  insolvency,  the  contract  should  be  satis- 
fied by  a  surrender  of  property.  It  was  admitted  on 
all  hands  that  the  Constitution  refers  to,  and  preserves 
the  legal,  not  the  moral  obligation  of  a  contract ;  be- 
cause obligations  purely  moral  are  not  enforced  by  the 
agency  of  human  laws ;  and  the  restraints  imposed  on 
the  States  by  the  Constitution  are  intended  for  objects 
which,  if  not  restrained,  would  be  the  subject  of  State 
legislation.  The  principle  insisted  on  by  the  Chief 
Justice  was,  that  laws  act  upon  a  contract,  and  do  not 
enter  into  it  and  become  a  stipulation  of  the  parties. 
"  Society,"  he  observed,  "  affords  a  remedy  for  breaches 
of  contract,  and  if  that  remedy  has  been  applied,  the 
claim  to  it  is  extinguished."  The  external  action  of 
law  upon  contracts,  by  administering  the  remedy  for 
their  breach,  is  the  usual  exercise  of  Legislative  power ; 
and  an  interference  with  those  contracts,  by  introducing 


CONSTITUTIONAL  JURISPEUDENCE.  369 

into  them  conditions  not  agreed  to  by  the  parties,  would 
be  a  very  unusual  and  extraordinary  exercise  of  the 
power  of  legislation,  and  one  not,  certainly,  to  be  gra- 
tuitously attributed  to  laws  which  do  not  profess  to 
claim  it. 

K  the  law  becomes  part  of  the  contract,  change  of 
place  will  not  expunge  the  condition.  A  contract  made 
in  New  York  would  be  the  same  in  any  other  State ; 
and  would  still  retain  the  stipulation  originally  intro- 
duced into  it — that  the  debtor  should  be  discharged  by 
the  surrender  of  his  estate.  It  cannot  be  true  that 
contracts  are  entered  into  in  contemplation  of  the  in- 
solvency of  parties  to  be  bound  by  them.  They  are 
framed  with  the  expectation  that  they  will  be  Uterally 
performed.    Insolvency,  undoubtedly,  is  a  casualty  which 

may    poseibly    occur,    but    it    ia    no-u-«>r    o-«-pp>r"tf>fl         In    iiio 

ordinary  course  of  human  transactions,  if  ks  probability 
be  even  suspected,  security  is  taken  against  it.  But 
when  it  comes  unlooked  for,  it  would  be  entirely  con- 
trary to  reason  to  consider  it  as  a  part  of  the  contract. 
However,  therefore,  a  law  may  act  upon  contracts,  it 
does  not  enter  into  them  and  become  a  part  of  them. 
The  effect  of  such  a  principle  would  be  a  mischievous 
abridgment  of  Legislative  power  over  subjects  within 
the  proper  jurisdiction  of  a  State,  by  arresting  its  power 
to  repeal  or  modify  such  laws  with  respect  to  existing 
contracts. 

But  it  has  been  objected  that  "  a  contract,  being  a 
creature  of  civil  society,  derives  its  obligation  from  the 
law,  which,  although  it  may  not  enter  into  the  agree- 
ment, stUl  acts  externally  upon  it,  and  determines  how 
far  the  principle  of  coercion  shall  be  applied  to  it ;  and 
this  rule  being  universally  understood^  no  individual 


370  LECTTJKES   ON 

can  justly  complain  of  its  application  to  himself." 
This  argument  was  illustrated  by  reference  to  the  stat- 
utes to  prevent  frauds,  which  require  certain  contracts 
to  be  reduced  to  writing,  in  order  to  render  them  obliga- 
tory ;  to  those  against  usury,  which  declare  an  usurious 
contract  void  from  its  origin ;  and  to  the  statutes  of 
limitations,  which  enable  one  party  to  prevent  the  other 
from  enforcing  the  contract  between  them,  after  the 
expiration  of  a  certain  period  from  its  breach  or  non- 
performance. But  here  the  fallacy  lies  at  the  very 
foundation  of  the  argument,  as  it  assumes  that  the 
contract  is  the  mere  creature  of  civil  society,  and  de- 
rives all  its  obligation  from  human  legislation ;  that  it 
is  not  the  stipulation  that  the  individual  makes  which 
binds  him,  but  some  declaration  of  the  supreme  power 
of  the  body  Dolitio  to  whifb  he  belongs  ;  and  that, 
though  the  •riginal  declaration  to  this  effect  be  lost  in 
remote  antiquity,  yet  it  must  be  presumed  to  be  the 
origin  of  the  obligation  of  contracts.  It  is,  however, 
an  objection  of  no  considerable  weight  against  the 
truth  of  this  position,  that  no  trace  exists  of  any  such 
enactment.  As  far  back  as  human  research  extends, 
we  find  the  Judicial  power  administering  remedies  to 
violated  rights  or  broken  contracts,  and  applying  those 
remedies  on  the  idea  of  a  preexisting  obligation  on 
every  man  to  do  that  which  he  has  promised  to  do; 
that  the  breach  of  this  obligation  is  an  injury  for  which 
the  party  has  a  just  claim  for  compensation  ;  and  that 
society  ought  to  afford  him  a  remedy  for  that  injury. 
We  find,  too,  allusions  to  the  modes  of  acquiring  prop- 
erty;  but  from  the  earliest  time,  we  find  no  allusion  to 
any  supposed  act  of  the  governing  power  as  giving 
obligation  to  contracts.     On  the  contrary,  all  the  pro- 


CONSTITUTIONAL  JURISPRUDENCE.  371 

ceedings  respecting  them,  of  which  we  know  anything, 
support  the  notion  of  a  preexisting  obligation,  which 
human  laws  merely  enforce. 

Upon  this  supposition,  that  the  obligation  of  the 
contract  is  derived  from  the  agreement  of  the  parties, 
let  us  proceed  to  inquire  how  far  laws  act  externally 
upon  contracts,  and  in  that  way  control  their  obligation. 
It  was  not  denied  that  a  law  might  have  such  an  effect 
upon  subsequent  contracts  ;  nor  that  it  may  be  capable 
of  discharging  a  debtor,  under  the  circumstances  and 
conditions  prescribed  in  the  statute,  which  was  relied 
on  in  the  case  referred  to.  But  as  that  was  an  effect 
neither  contemplated  nor  intended  by  the  parties,  an 
Act  of  the  Legislature  can  only  have  this  operation 
when  it  has  the  full  force  of  law.  A  law  may  deter- 
mine the  obligation  of  a  contract  on  the  happening  of 
a  contingency,  because  it  is  the  law.  But  if  it  be  not 
the  law,  it  cannot  have  this  effect ;  and  when  its  exist- 
ence or  force  as  law  is  denied,  they  cannot  either  of 
them  be  proved  by  showing  what  are  the  qualities  of  a 
law.  Law  has  been  defined  to  be  "  a  rule  of  civil 
conduct,  prescribed  by  the  supreme  power  in  a  state." 
In  our  system,  the  Legislature  of  a  State  is  the  supreme 
power  in  all  cases  in  which  its  action  is  not  restrained 
by  the  State  Constitution  or  the  Constitution  of  the 
United  States.  Where  it  is  so  restrained,  the  State 
Legislature  ceases  to  be  the  supreme  power,  and  its 
Acts  are  not  law.  It  was,  therefore,  begging  the  ques- 
tion to  say  that,  because  contracts  may  be  discharged 
by  a  law  previously  enacted,  it  was  discharged  in  that 
case  by  the  Act  of  the  Legislature  set  up  for  the 
purpose  ;  for  the  question  returned,  Was  that  act  law  ? 
Was  it  consistent  with,  or  repugnant  to,  the  Constitu- 
tion of  the  United  States  ? 


372  LECTURES   ON 

It  was  readily  admitted  that  the  whole  subject  of 
contracts  was  under  the  control  of  society,  and  that  all 
the  power  of  society  over  them  resides  in  the  State 
Legislatures,  except  in  those  special  cases  where  re- 
straint is  imposed  by  the  Federal  Constitution.  The 
extent  of  the  restraint  on  the  power  to  impair  the 
obligation  of  contracts  cannot,  however,  be  ascertained 
by  showing  that  the  Legislature  may  prescribe  the 
circumstances  on  which  their  original  validity  may  be 
made  to  depend.  K  the  Legislative  will  were  that 
certain  agreements  should  be  in  writing  ;  that  they 
should  be  sealed  and  attested  by  a  given  number  of 
witnesses ;  that  they  should  be  recorded,  or  assume  any 
prescribed  form  before  they  became  obligatory,  all  these 
are  regulations  which  society  may  rightfully  make ;  and 
they  do  not  come  within  the  restriction  of  the  Consti- 
tution, because  they  do  not  impair  the  obligation  of  the 
contract.  The  obligation  must  exist  before  it  can  be 
impaired ;  and  a  prohibition  to  impair  it  when  made, 
does  not  imply  an  inability  to  prescribe  those  conditions 
which  shall  create  its  obligation.  The  statutes  of  frauds 
which  have  been  enacted  in  the  several  States,  and 
which  are  acknowledged  to  flow  from  the  proper  exer- 
cise of  State  sovereignty,  prescribe  regulations  which 
must  precede  the  obligation  of  the  contract,  and,  conse- 
quently, cannot  impair  it.  Acts  of  this  description, 
therefore,  are  most  clearly  not  within  the  prohibition. 
The  Acts  against  usury  are  of  the  same  character ; 
they  declare  the  contract  to  be  void  from  the  beginning, 
and  deny  that  the  instrument  ever  became  a  contract ; 
they  deny  it  aU  original  obligation,  and  cannot,  there- 
fore, impair  that  which  never  came  into  existence. 
Statutes  of  limitation   approach   more   nearly  to  the 


CONSTITUTIONAL  JURISPRUDENCE.  373 

subject  under  consideration,  but  can  never  be  identified 
with  it ;  they  defeat  a  contract  once  obligatory,  but,  as 
has  been  before  observed,  they  relate  only  to  the  reme- 
dies furnished  to  enforce  the  contract,  and  their  language 
is  generally  confined  to  the  remedy ;  they  do  not  pur- 
port to  dispense  with  the  performance  of  the  contract, 
but  proceed  upon  the  presumption  that  a  certain  length 
of  time,  if  unexplained  by  circumstances,  affords  rea- 
sonable evidence  of  its  having  been  performed.  In 
prescribing  the  proofs  that  shall  be  received  in  their 
Courts,  and  the  effect  of  those  proofs,  the  States  exer- 
cise their  acknowledged  powers,  as  they  also  do  in 
regulating  the  remedies  and  modes  of  proceeding  in 
those  Courts.! 

It  was,  nevertheless,  insisted  that  the  right  to  regulate 
the  remedy,  and  to  modify  the  obligation  of  the  con- 
tract, were  the  same ;  that  obligation  and  remedy  were 
identical  and  synonymous.  But  the  answer  given  to 
this  proposition  seems  to  be  conclusive.  It  was,  "  that 
the  obligation  and  the  remedy  originate  at  different 
times."  The  obligation  to  perform  is  certainly  coeval 
with  the  contract  itself,  and  operates  anterior  to  the 
time  of  performance ;  while  the  remedy  acts  upon  a 
broken  contract,  and  enforces  a  preexisting  obligation. 
The  right  to  contract  is  the   acknowledged  attribute 

1  A  repeal  of  the  statutes. of  limitations  is  void  so  far  as  it  respects 
claims  already  barred.  3  N.  H.  473.  See  also  5  Pick.  65  ;  11  Mass. 
396  ;  2  Pick.  284  ;  3  Greenl.  326.  And  statutes  of  limitations  which 
do  not  allow  a  reasonable  time  after  the  passing  thereof  for  commenc- 
ing suits  on  existing  causes  of  action,  are  unconstitutional.  8  Mass. 
430  ;  2  Greenl.  294 ;  2  Gallis.  141 ;  4  Wheat.  207.  See  also  2  Peters, 
290 ;  1  Black/.  36  ;  1  Car.  Law  Rep.  385  ;  2  Hid.  428 ;  Pick.  1  ;  6 
Monro,  98  ;  7  Ibid.  11 ;  Ibid.  544-588  ;  4  Litt.  34-53  ;  Charlt.  175. 

32 


374  LECTURES   ON 

of  a  free  agent,  and  he  may  rightfully  coerce  perform- 
ance from  another  free  agent,  who  violates  his  faith. 
Contracts  have,  consequently,  an  intrinsic  obligation. 
When  men  enter  into  societies,  they  can  no  longer 
exercise  this  original  and  natural  right  of  coercion  ;  it 
is  surrendered  for  the  means  of  coercion  afforded  by 
society.  But  the  right  to  contract  is  not  surrendered 
with  the  right  to  coerce  performance.  The  former  is 
still  incidental  to  that  degree  of  free  agency  which  the 
laws  of  society  leave  to  every  individual,  and  the  obli- 
gation of  the  contract  is  the  necessary  consequence  of 
the  right  to  make  it.  Laws  regulate  this  right;  and 
where  it  is  not  regulated,  it  is  retained  in  its  original 
extent.  Obligation  and  remedy,  then,  are  not  identical; 
they  originate  at  different  times,  and  are  derived  from 
different  sources. 

But  it  was  alleged  that  "  the  power  of  the  State  over 
the  remedy  might  be  used  to  the  destruction  of  all 
beneficial  results  from  the  right;"  and  hence  it  was 
inferred  that  "the  construction  which  maintains  the 
inviolability  of  the  obligation  must  be  extended  to  the 
power  of  regulating  the  remedy."  The  difficulty,  how- 
ever, which  this  view  of  the  subject  presents,  does  not 
proceed  from  the  identity  or  connection  of  right  and 
remedy,  but  from  the  existence  of  distinct  Governments, 
acting  on  kindred  subjects.  The  Constitution  of  the 
United  States  contemplates  restraint  as  to  the  obliga- 
tion of  contracts,  not  as  to  the  application  of  the  remedy. 
If  this  restraint  affect  a  power  which  the  Constitution 
did  not  mean  to  touch,  it  can  only  be  when  that  power 
is  used  as  an  instrument  of  hostility  to  invade  the 
inviolability  of  contracts,  which  is  placed  beyond  its 
reach.     A  State  may  use  many  of  its  acknowledged 


CONSTITUTIONAL  JURISPRUDENCE.  375 

powers  in  such  a  manner  as  to  come  into  conflict  with 
the  provisions  of  the  Federal  Constitution  ;  thus  the 
powers  over  the  domestic  police,  and  the  power  to 
regulate  its  purely  internal  commerce,  may,  as  we  have 
already  seen,  be  so  exercised  as  to  interfere  with  the 
regulation  by  Congress  of  commerce  with  foreign  na- 
tions, or  among  the  States.  In  such  cases,  as  we  have 
before  observed,  the  power  which  is  supreme  must  con- 
trol that  which  is  subordinate.  This  principle  neither 
involves  self-contradiction,  nor  denies  the  existence  of 
the  several  powers  in  the  respective  Governments.  So, 
if  a  State  shall  not  merely  modify  or  withhold  a  par- 
ticular remedy,  but  shall  apply  it  in  such  a  manner  as 
to  extinguish  the  obligation  without  performance  of  a 
contract,  it  would  be  an  abuse  of  power  which  could 
scarcely  be  misunderstood  ;  but  it  would  not  prove  that 
remedy  could  not  be  regulated  without  regulating 
obligation. 

It  was  urged,  however,  as  a  conclusive  argument 
against  the  existence  of  a  distinct  line  of  division  be- 
tween obligation  and  remedy,  that  "  the  same  power 
which  can  withdraw  the  remedy  against  the  person  of 
the  debtor,  can  also  withdraw  that  against  his  property^'' 
and  thus  effectually  defeat  the  obligation.  "  The  Con- 
stitution," it  was  said,  "  did  not  deal  with  form,  but 
with  substance ;  and  could  not  be  presumed,  if  it  de- 
signed to  protect  the  obligation  of  contracts  from  State 
legislation,  to  have  left  it  thus  obviously  exposed  to 
destruction."  The  answer  is,  that  the  State  law  goes 
further,  and  annuls  the  obligation  without  affording  the 
remedy  which  satisfies  it ;  or,  if  its  action  on  the  rem- 
edy be  such  as  palpably  to  impair  the  obligation  of  the 
contract,  the  very  case  arises  which  was  supposed  to 


376  LECTURES   ON 

be  prohibited.  If  the  law  leaves  the  obligation  un- 
touched, but  withholds  the  remedy,  or  affords  one  which 
is  merely  nominal,  why,  this  is  like  all  other  cases  of 
misgovern ment,  and  leaves  the  debtor  still  liable  to  his 
creditors,  should  he,  or  his  property,  be  found  where  the 
laws  afford  a  remedy.  But  should  it  even  be  deter- 
mined that  such  a  law  was  a  successful  evasion  of  the 
Constitution,  it  would  not  follow  that  an  Act  which 
operates  directly  on  the  contract  after  it  is  made  was 
not  within  the  restriction  imposed  on  the  States.  The , 
validity  of  a  law  acting  immediately  upon  the  obliga- 
tion is  not  proved  by  showing  that  the  Constitution  has 
provided  no  means  for  compelling  the  States  to  enforce 
the  contract.  The  prohibition  in  question  is,  therefore, 
not  incompatible  with  the  fair  exercise  of  that  discre- 
tion which  the  State  Legislatures  possess,  in  common 
with  all  Governments,  to  regulate  the  remedies  afforded 
by  their  own  Courts. 

It  is  impossible  to  look  back  to  the  history  of  the 
times  when  the  august  spectacle  was  exhibited  of  a 
whole  people  assembling  by  their  representatives  in 
order  to  unite  thirteen  independent  sovereignties  under 
one  Government,  so  far  as  might  be  necessary  for  the 
purposes  of  union,  without  being  sensible  of  the  great 
importance  which  was  attached  to  this  article  of  the 
Constitution.  The  power  of  changing  the  relative 
situations  of  debtor  and  creditor,  of  interfering  with 
contracts,  a  power  which  comes  home  to  the  business 
of  every  man,  touches  the  interest  of  all  classes,  and 
controls  the  conduct  of  every  individual  in  those  things 
which  he  supposes  proper  for  his  own  exclusive  man- 
agement, had  been  abused  to  such  an  excess  by  the 
State  Legislatures  as  to  break  in  upon  the  ordinary 


CONSTITUTIONAL   JURISPRUDENCE.  377 

intercourse  of  society,  and  destroy  all  confidence  be- 
tween man  and  man.  The  mischief  had  become  so 
great  and  so  alarming,  as  not  only  to  impede  commer- 
cial intercourse  and  threaten  the  existence  of  public 
credit,  but  to  injure  the  morals  of  the  people,  and  de- 
stroy the  sanctity  of  private  faith.  To  guard  against 
the  recurrence  of  such  evils  was  an  object  of  deep  in- 
terest with  all  the  truly  wise  and  virtuous  men  in  the 
community,  as  well  as  in  the  Convention,  and  one 
of  the  most  important  benefits  anticipated  and  realized 
from  the  reform  of  the  Government. 

The  imposition  of  restraints  on  State  legislation  in 
regard  to  this  delicate  subject  was  thought  necessary 
by  all  who  took  an  honest,  enlightened,  and  compre- 
hensive view  of  the  situation  of  the  country,  and  the 
principle  in  question  obtained  an  early  admission  into 
the  various  schemes  of  Government  submitted  to  the 
Convention.  In  framing  a  national  compact  intended 
to  be  perpetual,  the  presumption  is,  that  every  impor- 
tant principle  introduced  into  it  was  intended  to  be 
perpetual  also ;  and,  if  expressed  in  terms  which  give 
it  operation  in  all  future  time,  the  fair  inference  is,  that 
it  was  intended  so  to  operate.  But,  if  the  construction 
against  which  we  have  been  contending  be  the  true 
one,  the  Constitution  will  have  imposed  a  restriction  in 
words,  which  every  State  in  the  Union  may  elude  at 
pleasure.  The  obligation  of  contracts  in  force  at  any 
given  period  is  but  of  short  duration,  and  if  the  inhi- 
bition be  of  retrospective  laws  only,  a  very  short  lapse 
of  time  would  remove  every  subject  on  which  the  Act 
is  forbidden  by  the  Constitution  to  operate,  and  render 
this  provision  so  far  useless.  Instead  of  introducing  a 
great  principle  prohibiting  all  laws  of  this  obnoxious 
32* 


378  LECTURES  ON 

character,  the  Constitution  would  only  suspend  their 
operation  for  a  season,  or  only  except  preexisting  cases ; 
an  object  which  would  hardly  have  been  deemed  of 
sufficient  importance  to  have  found  a  place  in  that 
instrument.  Such  a  construction,  moreover,  would 
change  the  character  of  the  provision,  and  convert  an 
inhibition  to  pass  laws  impairing  the  obligation  of  con- 
tracts into  an  inhibition  to  pass  retrospective  laws. 
Had  this  been  all  that  was  intended  by  the  Convention, 
it  would  probably  have  been  expressed  in  those  very 
words ;  the  prohibition  would  have  been  against  "  any 
retrospective  law"  instead  of  the  more  general  one 
against  "  any  law  impairing  the  obligation  of  con- 
tracts ; "  or,  if  the  intention  had  been  not  to  embrace 
all  retrospective  laws,  but  those  only  which  related  to 
contracts,  the  State  Legislature  would  have  been  for- 
bidden to  pass  "  any  retrospective  law  impairing  the 
obligation  of  contracts,"  or  "  any  law  impairing  the 
obligation  of  contracts  previously  made."  For  if  the 
minds  of  the  Convention,  in  framing  this  prohibition, 
had  been  directed  not  generally  to  the  operation  of 
laws  upon  the  obligation  of  contracts,  but  particularly 
to  their  retrospective  operation,  it  is  scarcely  conceivable, 
notwithstanding  the  imperfection  of  human  language, 
that  some  words  would  not  have  been  used  to  indicate 
that  idea,  and  limit  their  intention.  In  instruments 
prepared  on  great  consideration,  and  especially  in  those 
granting  political  power,  general  terms,  comprehending 
a  whole  subject,  are  seldom  employed  to  designate  a 
particular  or  minute  portion  of  it.  The  general  lan- 
guage of  this  clause  is  such  as  might  be  suggested  by 
a  general  intent  to  prohibit  State  legislation  on  the 
subject  to  which  that  language  is  applied  —  the  obliga- 


CONSTITUTIONAL  JURISPRUDENCE.  379 

tion  of  contracts  —  not  such  as  would  be  suggested  by 
a  particular  intent  to  prohibit  retrospective  legislation. 
Besides,  the  laws  which  had  effected  all  the  mischief 
the  Constitution  intended  to  prevent,  were  prospective, 
as  well  as  retrospective  in  their  operation.  They  em- 
braced future  contracts  as  well  as  those  previously 
made ;  from  this  circumstance,  therefore,  there  is  less 
reason  for  imputing  to  the  Convention  an  intention  not 
manifested  by  their  language,  and  adopt  a  construction 
which  would  confine  a  restriction  designed  to  guard 
against  those  mischiefs  in  future,  to  retrospective  legis- 
lation. 

Notwithstanding  all  this,  the  decision  of  the  majority 
of  the  Supreme  Court,  in  the  case  which  gave  rise  to 
this  discussion,  was,  as  we  have  mentioned,  in  favor 
of  the  validity  of  a  discharge  under  a  State  insolvent 
law,  where  the  contract  was  made  between  citizens  of 
the  State  under  the  insolvent  system  of  which  the  dis- 
charge had  been  obtained,  and  in  whose  Courts  it  had 
been  pleaded.  But  upon  the  question  whether  a  dis- 
charge of  a  debtor,  under  a  State  insolvent  law,  would 
be  valid  against  a  creditor  or  citizen  of  another  State, 
who  had  never  voluntarily  subjected  himself  to  the 
State  authority,  otherwise  than  by  the  origin  of  his 
contract,  one  of  the  judges  in  the  majority  agreed  with 
those  in  the  minority  on  the  former  question,  that  the 
discharge  was  not  available  in  an  action  brought  by  a 
citizen  of  another  State,  either  in  the  Courts  of  the 
United  States,  or  of  any  other  State  than  that  in  which 
the  discharge  was  obtained.  So  that  the  decision  in 
favor  of  State  insolvent  laws  impairing  the  obligation 
of  subsequent  contracts,  is  restricted  to  cases  in  which 
the  contract  was  made  within  the  State,  and  between 


380  LECTURES   ON 

citizens  of  the  same  State,  or  aliens,  but  is  sought  to 
be  enforced  in  the  Courts  of  that  State  in  which  the 
law  was  passed.^ 

1  That  a  State  law  may  be  retrospective  in  its  character, '  and 
devest  private  rights,  without  violating  the  Federal  Constitution, 
unless  it  also  impairs  the  obligation  of  contracts,  was  affirmed,  more 
recently,  by  the  Supreme  Court  of  the  United  States,  in  a  case 
brought  up  on  appeal  from  the  highest  Court  of  Massachusetts.  The 
Legislature  of  that  State  had  granted  to  Harvard  College  the  liberty 
and  power  of  disposing  of  a  ferry  from  Charlestown  to  Boston,  and  of 
receiving  a  rent  for  it.  Afterward  the  Legislature  incorporated  a 
company  to  erect  a  bridge  over  Charles  River,  at  the  place  where  the 
ferry  had  been  established,  the  company  paying  annually  to  the  col- 
lege a  certain  sum  of  money.  The  charter  gave  the  company  the  right 
to  take  tolls  for  forty  years,  and  afterward  extended  it  to  seventy. 
Before  the  forty  years  expired,  the  Legislature  authorized  the  erec- 
tion of  another  bridge,  so  near  the  first  as  injuriously  to  affect  its 
tolls.  The  proprietors  of  the  first  bridge  applied  to  the  Massachusetts 
Court  to  restrain  by  injunction  the  construction  of  the  second  bridge ; 
but  the  Court  dismissed  the  bill,  and  the  case  was  carried  by  appeal 
to  the  Supreme  Court  of  the  United  States,  on  the  ground  that  the 
first  charter  was  a  contract,  and  the  grant  of  the  second  a  violation 
of  it.  The  decree  of  the  ^Massachusetts  Court  was  affirmed ;  and  in 
giving  its  opinion,  the  Supreme  Court  observed,  that  "a  uniform 
course  of  action,  involving  the  right  to  the  exercise  of  an  important 
power  by  the  State  Government  for  half  a  century,  and  this  almost 
without  question,  was  not  satisfactory  evidence  that  the  power  was 
rightfully  exercised."  Vide  11  Peters's  Rep.  257.  On  the  other  hand, 
an  Act  of  the  Legislature  of  Vermont,  releasing  the  body  of  a  debtor 
from  imprisonment,  and  directing  that  the  bond  he  had  given  for  the 
prison-liberties  should  be  discharged,  was  held  to  be  void.  1  Chip. 
257.  See  also  2  Slew.  30;  3  Ibid.  387;  Ibid.  199;  2  Fairf.  118; 
7  Gill  §'  Johns.!  \  2  Pennsyl  184;  I  Rawle,  181,  190;  1  Afonr.  5  ; 
1  Blackf.  220  ;  2  Yerg.  534  ;  7  Johns.  Rep.  477;  17  Ibid.  195  ;  20  Ibid. 
269  ;  1  Wend.  53  ;  13  Ibid.  325 ;  5  Cowen,  538  ;  7  Ibid.  349,  585  ; 
4  Wheat.  659,  694  ;  6  Ibid.  593  ;  12  Pick.  184  ;  8  Mass.  468  ;  9  Ibid. 
151,  360;  12  Ibid.  443;  15  Ibid.  197;  4  Ham.  i57 ;  5  Greenl.  342; 


CONSTITUTIONAL  JUKISPKUDENCE.  ,    381 

If  any  part  of  a  State  law  is  unconstitutional,  such 
part  may,  as  we  have  seen,  be  disregarded,  whUe  fall 
effect  is  given  to  the  rest.  The  present  Constitution 
did  not  commence  its  operation  until  the  first  Wednes- 
day in  March,  1789,  and  the  prohibition  against  laws 
impairing  the  obligation  of  contracts,  does  not  extend 
to  a  State  law  enacted  before  that  day,  and  operating 
upon  rights  previously  vested. 

'  11.  The  other  limitations  on  the  State  powers  are 
those  in  which  the  prohibition  is  qualified^  and  restrict 
a  State,  without  the  consent  of  Congress^  from  laying 
"  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary"  for  executing  its 
inspection  laws  ;  from  laying  any  duty  on  tonnage ; 
keeping  troops  or  ships  of  war  in  time  of  peace  ;  enter- 
ing into  any  agreement  or  compact  with  another  State, 
or  with  a  foreign  power,  or  from  engaging  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger 
of  invasion  as  will  not  admit  of  delay. 

1st.  The  restraint  on  the  power  of  the  States  as  to 
imports  and  exports  is  enforced  by  aU  the  arguments 
which  prove  the  necessity  of  submitting  the  regulation ' 
of  commerce  to  the  General  Government.  From  the 
vast  inequality  between  the  different  States  as  to  com- 
mercial advantages,  few  subjects  were  viewed  with 
deeper  interest,  or  excited  greater  irritation,  than  the 
manner  in  which  the  several  States  exercised,  or  seemed 
under  the  Confederation  disposed  to  exercise,  the  power 
of  laying  duties  on  imports.  From  motives  which  were 
thought  sufficient  by  the  Cohvention,  the  general  power 
of  taxation,   indispensably  necessary   as   it  was,   and 

Walk.  328;  Litt.  326;  3  Peters,  280;  6  Serg.  Sf  Rawle,  322;  2  Whart. 
395;  1  Motir.  24. 


382  LECTURES   ON 

jealous  as  the  States  were  of  any  encroachments  upon 
it,  was  so  far  abridged  as  to  forbid  their  touching  im- 
ports or  exports,  with  the  single  exception  specified  in 
the  Constitution ;  and  they  were  thus  restrained  from 
a  general  conviction  that  the  interest  of  all  would  be 
promoted  by  placing  the  whole  subject  under  the  ex- 
clusive control  of  Congress. 

In  considering  the  power  of  Congress  to  regulate 
commerce,  I  referred  to  a  decision  of  the  Supreme 
Court,  declajing  unconstitutional  an  Act  of  a  State 
Legislature  requiring  importers  of  foreign  goods,  and 
the  vendors  of  the  same  at  wholesale,  to  obtain  a  license 
from  the  State,  and  pay  a  sum  of  money  for  the  same 
to  the  State  Treasury.^  This  Act  was  also  declared 
to  be  repugnant  to  the  prohibition  of  the  States  from 
laying  duties  on  exports  and  imports  without  the  con- 
sent of  Congress.  An  impost  or  duty  on  imports  is  a 
custom  or  tax  levied  upon  articles  brought  into  the 
country  for  sale  or  use;  and  is  most  usually  secured 
before  the  importer  is  allowed  to  exercise  his  right  of 
ownership  over  them,  because  evasions  of  the  revenue 
laws  can  be  prevented  more  certainly  by  executing 
them  while  the  articles  are  in  the  custody  of  the  Gov- 
ernment. It  would  not,  however,  be  less  an  impost  on 
the  articles  if  it  were  levied  on  them  after  they  were 
landed.  The  policy,  and  consequent  practice  of  levy- 
ing or  securing  the  duty  before  or  on  entering  the  port, 
does  not  limit  the  exercise  of  the  power  to  that  period  ; 
and,  consequently,  the  prohibition  on  the  States  is  not 
limited  to  that  state  of  circumstances,  unless  the  true 
meaning  of  the   clause   so   confines  it.     If  we  resort 

1  12  Wheat.  419. 


CONSTITUTIONAL  JURISPRUDENCE.  383 

either  to  technical  authority  or  to  common  usage  for 
the  meaning  of  the  term  "  imports,"  we  find  it  signifies 
"  the  things  imported,"  or  the  articles  themselves,  which 
are  brought  into  the  country.  It  is  not  in  its  literal 
sense  confined  to  a  duty  levied  while  the  article  is 
entering  the  country,  but  extends  to  a  tax  levied  after 
it  has  actually  entered  it.  Again,  if  we  look  to  the 
objects  of  the  prohibition,  we  find  that  there  is  no 
difference,  in  effect,  between  the  power  to  prohibit  the 
sale  of  an  article  and  a  power  to  prohibit  its  introduc- 
tion. The  one  is  a  necessary  consequence  of  the  other. 
No  goods  would  be  imported  if  none  could  be  sold  ; 
nor  can  any  object  of  any  description  be  accomplished 
with  equal  certainty  by  laying  a  duty  on  the  thing 
imported  in  the  hands  of  the  importer ;  and  it  is  ob- 
vious that  the  same  power  which  imposes  a  light  duty 
might  impose  one  amounting  to  a  prohibition.  The 
prohibition  on  the  States  to  lay  a  duty  on  imports  may, 
indeed,  come  in  conflict  with  their  acknowledged  power 
to  tax  persons  and  property  within  their  jurisdiction ; 
and  although  this  power,  and  the  restriction  of  it,  are 
easily  distinguishable  when  they  do  not  approach  each 
other,  yet  they  may  approach  so  nearly  as  to  perplex 
us  in  marking  the  distinction  between  them.  The  dis- 
tinction, nevertheless,  exists,  and  must  be  defined  as 
the  cases  in  which  it  exists  arise.  It  was  deemed 
sufficient,  in  the  case  referred  to,  to  say  generally,  that 
when  the  importer  has  so  dealt  with  the  thing  imported 
that  it  has  become  incorporated  and  mixed  up  with  the 
mass  of  property  in  the  country,  it  has,  perhaps,  lost  its 
distinctive  character  as  an  import,  and  become  subject 
to  the  taxing,  power  of  the  State ;  but  while  it  con- 
tinues the  property  of  the  importer,  and  remains  in  his 


384  LECTURES   ON 

warehouse  in  the  original  form  or  package  in  which  it 
was  imported,  a  tax  upon  it  is  too  plainly  a  duty  on 
imports  to  escape  this  prohibition  of  the  Constitution. 

The  general  power  of  taxation  is  retained  by  the 
States,  without  being  abridged  by  the  grant  of  a  simi- 
lar power  to  the  Government  of  the  Union,  and  is  to 
be  concurrently  exercised  by  both  Governments,  under 
their  respective  Constitutions ;  but,  from  the  paramount 
authority  of  the  General  Government,  the  States  are 
restrained,  without  any  express  prohibition,  from  any 
exercise  of  their  taxing  power,  which,  in  its  nature,  is 
incompatible  with,  or  repugnant  to,  the  constitutional 
laws  of  the  Union.  As  they  have  no  power,  by  taxa- 
tion or  otherwise,  to  retard,  impede,  burden,  or  in  any 
manner  to  control  the  operation  of  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  any  of  the 
powers  vested  in  the  Federal  Government,  they  cannot 
tax  certificates  issued  by  it  for  money  borrowed  on  the 
credit  of  the  United  States,^  nor  the  stock  of  a  bank 
chartered  by  Congress  ;  the  latter  is  an  instrument,  and 
the  former  are  incidents  of  a  power  essential  to  the 
fiscal  operations  of  the  Union.^ 

2d.  The  other  qualified  prohibitions  have  their  origin 
in  the  same  general  policy  which  absolutely  forbids  any 
State  from  entering  into  any  treaty,  alliance,  or  con- 
federation, and  from  granting  letters  of  marque  and 
reprisal ;  and  they  are  supported  by  the  same  reasoning 
which  establishes  the  propriety  of  confiding  every  thing 
relative  to  the  power  of  declaring  war  to  the  exclu- 
sive direction  and  control  of  the  General  Government. 
Treaties  of  alliance,  for  purposes  of  peace  or  war,  of 

1  2  Peters,  449.  2  4  Wheat.  316  ;  9  Ihid.  738. 


CONSTITUTIONAL  JUKISPRUDENCE.  385 

external  political  dependence,  or  general  commercial 
privileges ;  treaties  of  confederation  for  mutual  govern- 
ment, political  cooperation,  or  the  exercise  of  political 
sovereignty,  or  for  conferring  internal  political  jurisdic- 
tion, are  absolutely  prohibited  to  the  States.  But  com- 
pacts and  agreements,  which  apply  to  the  mere  private 
rights  of  sovereignty,  such  as  questions  of  boundary 
between  a  State  and  a  foreign  province,  or  another 
State ;  interests  in  land  situate  within  their  respective 
boundaries,  and  other  internal  regulations  for  the  mu- 
tual accommodation  of  States  bordering  on  each  other, 
may  be  entered  into  by  the  respective  States,  with  the 
consent  of  Congress.  A  total  interdiction  of  such  agree- 
ments or  contracts  might  have  been  attended  with  per- 
manent inconvenience,  or  public  injury  to  the  States ; 
and  the  consent  of  Congress  to  their  being  entered  into 
is  required  to  guard  against  every  infringement  of  the 
national  rights,  which  might  be  involved  in  them. 
Hence  it  is  that  the  rule  of  decision  adopted  by  the 
Courts  of  the  United  States  in  questions  that  arise 
under  a  compact  between  States,  is  of  an  international 
character ;  and  is  not,  as  we  have  seen,  to  be  collected 
from  the  decisions  of  the  Courts  of  either  State.^ 

As  the  maintenance  of  an  army  and  navy  by  a  State 
in  time  of  peace  might  produce  jealousies  and  alarm 
in  neighboring  States,  and  in  foreign  nations  bordering 
on  its  territory,  the  States  are  prohibited  from  such 
establishments,  unless  with  the  consent  of  the  General 
Government.  But  as  a  State  may  be  so  situated  in 
time  of  war  as  to  render  a  military  force  necessary  to 

1  11  Peters,  22.  See  also  8  Wheat.  1 ;  1  Peters,  457,  465  ;  4  Bibb, 
54;  1  Litt.  367;  1  Yeates,  513;  3  Ibid.  440,  448;  2  Pennsyl.  ^9  \ 
Cooke,  130,  149;  1  Overt,  243. 

33 


386  LECTUBES   ON 

resist  an  invasion,  of  which  the  danger  may  be  too 
imminent  to  admit  of  delay  in  organizing  it,  the  States 
have  a  right  to  raise  troops,  and  fit  out  fleets  for  its 
own  safety  in  time  of  war,  without  obtaining  the  con- 
sent of  Congress. 

Besides  the  express  restrictions  upon  the  powers  of 
the  several  States,  there  are  others  arising  by  necessary 
implication  from  the  supremacy  of  the  Federal  Govern- 
ment within  the  sphere  of  its  proper  jurisdiction,  and 
which,  from  its  paramount  authority,  restrain  the  State 
Governments :  — 

1.  Where  an  exclusive  power  is  expressly  granted  to 
Congress,  there  the  State  power  ceases  to  operate,  as  in 
the  grant  of  exclusive  legislation  over  places  ceded  for 
forts  and  arsenals.^ 

2.  Where  there  is  a  direct  incompatibility  in  the 
exercise  of  a  power  by  the  States,  which  has  been 
granted  to  the  United  States ;  as  in  the  power  to  estab- 
lish an  uniform  rule  of  naturalization,  and  the  exercise 
of  admiralty  and  maritime  jurisdiction. ^ 

3.  Where  the  law  of  a  State  attempts  to  impede  or 
control  the  lawful  institutions  or  measures  of  the  Gen- 
eral Government ;  as  to  interfere  with  the  judgments, 
process,  or  proceedings  of  the  Courts  or  officers  of  the 
United  States.^ 

In  all  these  cases,  the  powers  of  the  National  Gov- 
ernment are,  as  we  have  seen,  exclusive,  and  the  laws 
of  the  States  conflicting  with  them,  are  absolutely  void. 
But,  as  we  have  also  seen :  — 

1  2  Mason,  69  ;  5  Ibid  356 ;  5  Wheat.  317. 
»  1  Wheat.  304 ;  2  Ibid.  269  ;  5  Ibid.  49. 

3  2  Cranch,  397  ;  5  Ibid.  117  ;  7  Ibid.  279  ;  4  Wheat.  316  ;  6  Ibid. 
598 ;  2  Peters,  449. 


CONSTITUTIONAL  JURISPRUDENCE.  387 

4.  Where  a  power  is  granted  to  Congress,  not  in  its 
nature  exclusive,  and  a  law  passed  in  virtue  of  such 
power,  comes  in  direct  and  manifest  collision  with  a 
State  law, — the  former  being  paramount, — the  latter 
must  yield  so  far,  and  so  far  only,  as  the  incompatibility 
extends  j  as  in  the  cases  of  bankrupt  laws,  tax  laws, 
and  others  in  which,  under  the  proper  heads,  it  has  been 
shown  that  the  powers  of  the  two  Governments  are 
concurrent,  and  the  State  law  binding  in  the  absence 
of  any  incompatible  law  of  Congress. 

The  powers  granted  to  Congress  then  are  not  exclu- 
sive of  similar  powers  existing  in  the  States,  unless 
where  the  Constitution  has  in  express  terms  given 
exclusive  power  to  Congress,  or  the  exercise  is  prohib- 
ited to  the  States,  or  there  is  a  direct  repugnancy  or 
incompatibility  in  the  exercise  of  it  by  the  States.^ 
An  example  of  the  first  class  we  have  found  in  the 
exclusive  legislation  of  Congress,  over  places  purchased 
by  consent  of  a  State  Legislature  for  forts,  arsenals, 
&c.  Of  the  second  class,  besides  the  examples  already 
adduced,  is  the  prohibition  of  a  State  to  coin  money, 
or  emit  bills  of  credit ;  of  the  third,  is  the  power  of 
Congress  to  establish  a  uniform  rule  of  naturalization, 
and  the  delegation  of  admiralty  and  maritime  jurisdic- 
tion to  the  General  Government :  in  all  other  classes 
of  cases  the  States  retain  concurrent  jurisdiction  with 
Congress.  We  have  seen,  also,  that  although  a  mere 
grant  of  power,  in  affirmative  terms,  to  Congress  does 
not  per  se,  transfer  an  exclusive  sovereignty  over  such 
subjects,  unless  it  be  incompatible  with  the  existence 
of  a  like  power  in  the  States,  yet  when  the  Legis- 

1  4  Wheat.  122  ;  5  Ibid.  1,  49  ;  4  Cond.  109. 


388  LECTURES   ON 

lature  of  the  Union  has  exercised  its  powers  on  'the 
given  subject,  the  State  power  over  that  subject,  which 
had  before  been  concurrent,  becomes,  by  such  exercise, 
prohibited.  And  we  have  previously  seen  that  in  con- 
struing the  Constitution  of  the  United  States,  in  regard 
to  the  restrictions  on  the  powers  of  the  States,  as  well 
as  to  the  grants  of  power  to  the  Union,  the  Supreme 
Court  has  ever  held  that  an  exception  of  any  particular 
case,  presupposes  that  those  which  are  not  excepted 
are  included,  and  has  laid  it  down  as  a  general  rule 
that,  where  no  exception  is  made  in  terms,  none  will 
be  made  by  implication  or  construction.^ 

1  12  Peters,  657  ;  6  Wheat.  264 ;  9  Ibid.  206  ;  12  Ibid.  419.     See 
also  Lecture  VIII. 


CONSTITUTIONAL  JUKISPRUDENCB.  889 


LECTURE    XII. 

ON  THE  PROVISIONS   CONTAINED  IN  THE  CONSTITUTION  FOR 
GIVING  EFFICACY  TO   THE   FEDERAL   POWERS. 

The  sixth,  and  last  class  of  powers  enumerated  in 
the  Constitution,  consists  of  certain  provisions  by  which 
efficiency  is  given  to  the  rest.  The  first  of  these  is  the 
power  "  to  make  all  laws  necessary  and  proper  for  carry- 
ing^ the  foregoing  powers  into  execution^  ^ 

I.  It  was  remarked  by  the  authors  of  "  The  Fed- 
eralist," that  "  without  the  substance  of  this  power,  the 
whole  Constitution  would  be  a  dead  letter ; "  and,  as 
few  parts  of  that  instrument  had  been  assailed  with 
more  intemperance,  they  justly  inferred  that  "  it  was 
the  form  only  of  the  provision  that  was  objected  to, 
and  they  accordingly  proceeded  to  consider"  whether  a 
better  one  could  have  been  substituted.  "  There  were 
four  other  methods,"  they  observe,  "  which  the  Conven- 
tion might  have  pursued;  they  might  have  copied  the 
article  of  the  Confederation  which  prohibited  the  ex- 
ercise of  any  power  not  expressly  delegated ;  they 
might  have  attempted  a  positive  enumeration  of  the 
powers  comprehended  under  the  general  terms  neces' 
sary  and  proper ;  they  might  have  attempted  a  negative 
enumeration   of  them,  by  specifying  the   powers   ex- 

1  Const.  U.  S.,  Art.  I.  Sect.  viii.  to  xviii. 
33* 


390  LBCTUKES   ON 

cepted  from  the  general  definition ;  or  they  might  have 
been  altogether  silent  on  the  subject,  and  left  these 
necessary  and  proper  powers  to  construction  and  in- 
ference." ^ 

Had  the  first  method  been  adopted,  it  is  evident  that 
the  new  Congress,  like  their  predecessors,  would  have 
been  continually  exposed  to  the  alternative,  either  of 
construing  the  term  "  expressly  "  with  so  much  rigor  as 
to  disarm  the  Government  of  aU  real  authority,  or  with 
so  much  latitude  as  altogether  to  destroy  the  force  of 
the  restriction.  It  would  be  easy  to  show,  were  it 
necessary,  that  no  important  power  delegated  by  the 
Articles  of  Confederation  was  or  could  have  been  exe- 
cuted by  Congress,  without  recurring,  more  or  less,  to 
the  doctrine  of  construction  or  implication.  As  the 
powers  delegated  under  the  new  system  were  more 
extensive,  the  Government,  which  was  to  administer 
it,  would  have  found  itself  still  more  frequently  driven 
to  the  dilemma  of  doing  nothing,  or  violating  the  Con- 
stitution, by  exercising  powers  indispensably  necessary, 
but  not  expressly  granted. 

Had  the  Convention  made  a  positive  enumeration  of 
the  powers  necessary  and  proper  for  carrying  the  other 
powers  into  effect,  it  would  have  involved  a  complete 
digest  of  laws  on  every  subject  to  which  the  Constitu- 
tion relates ;  accommodated,  too,  not  only  to  the  exist- 
ing state  of  things,  but  to  all  possible  changes  which 
futurity  might  produce.  Had  they  attempted  to  enu- 
merate the  particular  powers  or  means  not  necessary  or 
proper  for  carrying  the  general  powers  into  execution, 
the  undertaking  would  have  been  no  less  chimerical, 

'  No.  144,  by  Mr.  Hamilton. 


CONSTITUTIONAL  JURISPRUDENCE.  391 

and  would,  moreover,  have  been  liable  to  this  further 
objection,  that  every  defect  in  the  enumeration  would 
have  been  equivalent  to  a  positive  grant  of  authority. 
If,  to  avoid  this  consequence,  they  had  attempted  a 
partial  enumeration  of  exceptions,  and  described  the 
residue  by  the  general  terms  "  necessary  and  proper," 
the  enumeration  must  have  comprehended  only  a  few 
of  the  excepted  cases,  and  those  the  least  likely  to  be 
assumed  or  tolerated ;  because  the  enumeration  would, 
of  course,  have  selected  such  as  would  have  been  least 
necessary  and  proper,  and  therefore  the  unnecessary 
and  improper  powers  included  in  the  remainder  would 
be  less  forcibly  assumed  than  if  no  particular  enumera- 
tion had  been  made. 

Had  the  Constitution  been  silent  on  this  subject, 
there  can  be  no  doubt  that  all  the  particular  powers 
requisite,  as  means  of  executing  the  general  powers, 
would  have  resulted  to  the  Government  by  unavoidable 
implication.  No  axiom  is  more  clearly  established  in 
law  or  reason,  than  that,  wherever  an  end  is  required, 
the  means  are  authorized ;  wherever  a  general  power 
to  do  a  thing  is  given,  every  particular  power  necessary 
for. doing  it  is  included.  Had  this  last  method,  there- 
fore, been  pursued,  every  objection  urged  against  this 
"part  of  the  Constitution  would  have  remained,  in  all 
its  plausibility,  and  the  real  inconvenience  felt  of  not 
removing  a  pretext  which  might  be  used  on  critical 
occasions  for  drawing  in  question  the  essential  powers 
of  the  Union.  But,  with  the  view  of  quieting  the 
excessive  jealousy  which  had  been  excited  by  this  pro- 
vision, an  amendment  of  the  Constitution  was  adopted, 
which,  omitting  the  word  "  expressly "  in  the  Articles 
of  Confederation,  simply  declares  that  the  powers  "  not 


392  LECTURES   ON 

delegated  to  the  United  States,  nor  prohibited  to  the 
States,  are  reserved  to  the  States  or  to  the  People ;" 
thus  leaving  the  question,  whether  the  particular  power, 
which  may  become  the  subject  of  controversy,  has  been 
delegated  to  the  one  Government  or  the  other,  to  de- 
pend upon  a  fair  construction  of  the  whole  instrument. 
The  first  occasion  which  called  for  an  interpretation 
of  this  part  of  the  Constitution,  arose  during  the  first 
Congress  assembled  under  its  authority.  Alexander 
Hamilton,  at  that  time  Secretary  of  the  Treasury,  had 
recommended  the  institution  of  a  National  Bank,  as  of 
primary  importance  to  the  prosperous  administration  of 
the  finances,  and  of  the  greatest  utility  in  the  opera- 
tions connected  with  the  support  of  public  credit. 
The  bill  introduced  into  the  House  of  Representatives 
for  that  purpose,  was  opposed,  as  unconstitutional.  It 
was  contended  that  the  Federal  Government  was  lim- 
ited to  the  exercise  of  its  enumerated  powers,  and  that 
the  power  to  incorporate  a  Bank  was  not  one  of  them  ; 
that  if  such  power  was  vested  in  the  Government,  that 
it  must  be  an  implied  power,  and  that  the  power  given 
to  Congress  to  pass  aU  laws  necessary  and  proper  to 
execute  the  specified  powers,  must  be  limited  to  means 
necessary  to  the  end,  and  incident  to  the  nature  of  the 
specified  power.  On  the  other  side,  it  was  urged  that 
incidental  as  well  as  express  powers  necessarily  belong 
to  every  Government  ;  and  that  when  a  power  was 
delegated  to  effect  particular  objects,  all  the  known  and 
usual  means  of  effecting  them  followed,  as  incidental 
to  it ;  and  it  was  on  this  ground  insisted  that  a  Bank 
was  a  known  and  usual  instrument  which  several  of 
the  enumerated  powers  of  the  Government  required 
for  their  due  execution. 


CONSTITUTIONAL  JURISPRUDENCE.  393 

After  the  bill  had  passed  both  Houses  of  Congress, 
the  question  touching  its  conformity  to  the  Constitu- 
tion was  agitated  with  equal  ability  and  ardor  in  the 
Executive  cabinet.  Mr.  Jefferson,  the  Secretary  of  State, 
and  Mr.  Edmund  Randolph,  the  Attorney-General,  con- 
ceived that  Congress  had  transcended  its  powers ;  but 
the  Secretary  of  the  Treasury  maintained  the  opposite 
opinion,  and  was  supported  by  General  Knox,  the 
Secretary  at  War.  It  was  argued  against  the  validity 
of  the  Act,  that  "  the  power  to  incorporate  a  Bank 
was  not  among  the  enumerated  powers ;  and  to  take 
a  single  step  beyond  the  boundaries  specially  drawn 
around  the  powers  of  Congress,  would  be  to  take  pos- 
session of  an  undefined  and  undefinable  field  of  power  ; 
that,  though  Congress  were  authorized  to  make  all 
laws  necessary  and  proper  for  carrying  into  execution 
the  enumerated  powers,  they  were  confined  to  those 
means  which  were  necessary,  and  not  merely  conve- 
nient. It  meant  those  means  without  which  the  grant 
of  the  power  would  be  nugatory ;  and  if  such  a  latitude 
of  construction  were  allowed  as  to  give  to  Congress 
any  implied  powers  on  the  ground  of  convenience,  it 
would  swallow  up  all  the  enumerated  powers,  and  re- 
duce the  whole  list  to  one  phrase." 

To  this  it  was  replied,  that  "  every  power  vested  in 
a  Government  was,  in  its  nature,  sovereign,  and  gave 
a  right  to  employ  all  the  means  fairly  applicable  to  the 
attainment  of  the  end  of  the  power,  and  not  specially 
precluded  by  specified  exceptions,  nor  contrary  to  the 
essential  ends  of  political  society  ;  and  though  the 
Government  of  the  United  States  was  one  of  limited 
and  specified  powers,  it  was  sovereign  with  regard  to 
its  proper  objects  and  declared  purposes  and  trusts ; 


394  LECTURES   ON 

that  it  was  incident  to  sovereign  power  to  erect  corpo- 
rations, and,  consequently,  it  was  incident  to  the  Gov- 
ernment of  the  United  States  to  erect  one  in  relation 
to  the  objects  intrusted  to  its  management ;  that  im- 
plied powers  are  as  completely  delegated  as  those  which 
are  expressed,  and  the  power  of  erecting  a  corporation 
may  as  well  be  implied  as  any  other  instrument  or 
means  of  carrying  into  execution  any  of  the  specified 
powers ;  that  the  exercise  of  the  power  in  that  case 
had  a  natural  relation  to  the  lawful  ends  of  the  Govern- 
ment, and  it  was  incident  to  the  sovereign  power  to 
regulate  the  currency,  and  to  employ  all  the  means 
which  apply  with  the  best  advantage  to  that  regula- 
tion ;  that  the  word  necessary  in  the  Constitution  ought 
not  to  be  confined  to  those  means  without  which  the 
grant  of  the  power  would  be  nugatory ;  that  it  often 
means  no  more  than  needful,  requisite,  useful,  or  con- 
ducive  to;  and  that  this  was  the  sense  in  which  the 
word  was  used  in  the  Constitutioa.  The  relation  be- 
tween the  measure  and  the  end  was  the  criterion  of 
constitutionality,  and  not  whether  there  was  a  greater 
or  less  degree  of  necessity  or  utility.  The  infinite 
variety,  extent,  and  complexity  of  national  exigencies, 
necessarily  required  great  latitude  of  discretion  in  the 
selection  and  application  of  means ;  and  the  authority 
intrusted  to  Government  ouglit  and  must  be  exercised 
on  principles  of  liberal  construction." 

General  Washington  gave  to  these  arguments  a  de- 
liberate and  profound  consideration,  which  terminated 
in  his  conviction  that  the  incorporation  of  a  Bank  was 
a  measure  authorized  by  the  Constitution.  The  biU 
for  that  purpose  accordingly  received  his  approval  and 
became  a  law. 


CONSTITUTIONAL  JURISPRUDENCE.  395 

The  same  question  came  before  the  Supreme  Court 
of  the  United  States,  in  1819,  in  reference  to  the  then 
existing  Bank,  which  had  been  incorporated  in  1816, 
and  upon  which  the  State  of  Maryland  had  subse- 
quently imposed  a  tax ;  and  although  the  question  had 
twice  been  settled,  so  far  as  a  Legislative  Act  could 
settle  it,  yet  it  was  thought  worthy  of  a  renewed  dis- 
cussion in  the  Judicial  department.  The  Chief  Justice,^ 
however,  observed  "  that  it  could  hardly  be  considered 
an  open  one,  after  the  principle  had  been  so  early  intro- 
duced and  recognized  by  many  successive  Legislatures, 
and  had  acted  upon  the  Judiciary  as  a  law  of  un- 
doubted obligation."  He  nevertheless  admitted  that 
it  belonged  to  the  Supreme  Court  alone  to  make  a  final 
decision,  and  that  the  question  involved  a  consideration 
of  the  Constitution  in  its  most  interesting  and  vital 
parts. 

It  was,  moreover,  admitted  that  "  the  Government  of 
the  United  States  was  one  of  enumerated  powers ;  but, 
though  limited  in  its  powers,  it  was  supreme  within 
its  sphere  of  action."  There  was  nothing,  however,  in 
the  Constitution  which  excluded  incidental  or  implied 
powers.  The  Articles  of  Confederation,  indeed,  gave 
nothing  to  the  United  States  but  what  was  expressly 
granted ;  but  the  amendment  to  the  new  Constitution 
had  dropped  the  word  "  expressly,"  and  left  the  ques- 
tion whether  a  particular  power  was  granted  to  depend, 
as  we  have  seen,  on  a  fair  construction  of  the  whole 
instrument.  "  No  Constitution,"  he  continued,  "  can 
contain  an  accurate  detail  of  all  the  subdivisions  of  its 
powers,  and  of  all  the  means  by  which  they  may  be 

1  Marshall. 


396  LECTURES   ON 

carried  into  execution.  Its  nature  required  that  only 
the  great  outlines  should  be  marked,  and  its  important 
objects  designated,  and  all  the  minor  ingredients  left 
to  be  deduced  from  the  nature  of  those  objects.  The 
sword  and  the  purse,  all  the  external  relations,  and  no 
inconsiderable  portion  of  the  industry  of  the  nation, 
were  intrusted  to  the  General  Government  ;  and  a 
Government  intrusted  with  such  ample  powers,  on  the 
due  execution  of  which  the  happiness  and  prosperity 
of  the  nation  vitally  depend,  must  also  be  intrusted 
with  ample  means  for  their  execution ;  and  unless  the 
words  imperiously  require  it,  we  ought  not  to  adopt  a 
construction  which  would  impute  to  the  framers  of 
the  Constitution,  when  granting  great  powers  for  the 
public  good,  the  intention  of  impeding  their  exercise 
by  withholding  a  choice  of  means." 

"  The  powers  given  to  the  Government,"  he  said, 
"  imply  the  ordinary  means  of  execution ;  and  the  Gov- 
ernment, in  all  sound  reasoning  and  fair  interpretation, 
must  have  the  choice  of  the  means  which  it  deems 
the  most  convenient  and  appropriate  to  the  execution 
of  the  power.  The  power  of  creating  a  corporation, 
though  appertaining  to  sovereignty,  was  held  not  to  be 
a  great  substantive  and  independent  power,  but  merely 
a  means  by  which  other  objects  are  accomplished ;  in 
like  manner  as  no  seminary  of  learning  is  instituted  in 
order  to  be  incorporated,  but  the  corporate  charter  is 
conferred  to  subserve  the  purposes  of  education.  The 
power  of  creating  a  corporation,  indeed,  was  never  used 
for  its  own  sake,  but  always  for  the  purpose  of  effecting 
something  else.  It  was  nothing,  therefore,  but  the  ordi- 
nary means  of  attaining  some  public  and  useful  end. 
But  the  Constitution  had  not  left  the  right  of  Congress 


CONSTITUTIONAL  JURISPRUDENCE.  397 

to  employ  the  necessary  means  for  the  execution  of  its 
powers  to  general  reasoning ;  it  was  expressly  author- 
ized to  employ  such  means ;  and  '  necessary  mecms^ 
in  the  sense  of  the  Constitution,  did  not  import  an 
absolute  physical  necessity  so  strong  that  one  thing 
could  not  exist  without  the  other,  but  the  term  signified 
any  means  calculated  to  produce  the  end." 

"  The  word  necessary^''  it  was  observed,  "  admitted 
of  all  degrees  of  comparison.  A  thing  might  be  neces- 
sary^ or  very  necessary,  or  absolutely  and  indispensably 
necessary;  to  no  mind  would  the  same  idea  be  con- 
veyed by  these  several  phrases  ; "  and  the  remark  was 
well  illustrated  by  a  reference  to  that  article  of  the 
Constitution  which  prohibits  a  State  from  laying  "  im- 
posts or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  carrying  into  execution  its 
inspection  laws."  It  is  impossible  to  compare  this 
clause  with  that  under  consideration,  without  feeling 
a  conviction  that  the  Convention  understood  itself  to 
change  materially  the  meaning  of  the  word  "  neces- 
sary," by  prefixing  to  it  the  word  "  absolutely "  in  the 
one  case,  and  to  qualify  its  signification  by  dropping  it 
in  the  other. 

The  word  "  necessary,"  then,  like  many  others,  is 
used  in  various  senses ;  and  in  fixing  its  construction, 
the  intention,  the  subject,  the  context,  are  all  to  be 
taken  into  view.  The  powers  of  the  General  Govern- 
ment were  given  for  the  welfare  of  the  nation ;  they 
were  intended  to  endure  for  ages,  and  to  be  adapted 
to  the  various  exigencies  of  human  affairs.  To  have 
prescribed  the  specific  means  by  which  the  Government 
should,  in  all  future  time,  execute  its  powers,  would 
have  changed  entirely  the  character  of  the  Constitution, 
34 


398  LECTURES   ON 

and  given  it  the  properties  of  a  legal  code.  It  would 
have  been  an  unwise  attempt  to  provide  by  immutable 
rules  for  cases  which,  if  foreseen  at  all,  must  have  been 
perceived  indistinctly,  and  which  could  have  been  better 
provided  for  as  they  occurred:  To  have  declared  that 
the  best  means  should  not  be  used,  but  those  only 
without  which  the  power  given  would  be  nugatory, 
would  have  deprived  Congress  of  the  capacity  to  avail 
itself  of  experience,  or  to  exercise  its  reason  and  ac- 
commodate its  legislation  to  circumstances. 
'  If  the  end  be  legitimate,  and  within  the  scope  of 
the  Constitution,  all  means  which  are  appropriate  and 
plainly  adapted  to  those  ends,  and  which  are  not  pro- 
Vjiibited,  are  lawful ;  and  a  corporation  was  considered 
as  a  means  not  less  usual,  nor  of  higher  dignity,  nor 
more  requiring  a  particular  specification,  than  other 
means.  A  National  Bank  was  deemed  a  convenient, 
useful,  and  essential  instrument  in  the  prosecution  of 
the  fiscal  operations  of  the  Government.  It  was  clearly 
an  appropriate  measure ;  and  while  the  Court  declared 
it  to  be  within  its  power,  and  its  duty  to  maintain  that 
an  Act  of  Congress  exceeding  its  constitutional  power 
of  legislation  was  not  the  law  of  the  land,  yet,  if  a 
law  was  not  prohibited  by  the  Constitution,  and  was 
really  calculated  to  effect  an  object  intrusted  to  the 
Government,  it  did  not  pretend  to  the  power  to  inquire 
into  the  degree  of  its  necessity,  as  that  would  be  pass- 
ing the  line  which  circumscribes  the  Judicial  power, 
and  treading  on  Legislative  ground. 

The  Court,  therefore,  decided  that  the  law  creating 
the  Bank  was  made  in  pursuance  of  the  Constitution, 
and  that  the  branches  of  the  National  Bank,  proceeding 
from  the  same  stock,  and  conducing  to  the  complete 


CONSTITUTIONAL  JURISPRUDENCE.  399 

accomplishment  of  its  objects,  were  equally  consistent 
with  the  Constitution.^  It  was  afterward  led,  in  some 
degree,  to  review  this  decision,  and,  in  a  subsequent 
case,  admitted  that  Congress  could  not  create  a  corpo- 
ration for  its  own  sake*  or  for  private  purposes.^  It 
was  observed  on  this  occasion,  that  the  opinion  in  the 
former  case  was  founded  on  and  sustained  by  the  idea 
that  the  Bank  was  an  instrument  which  was  "  necessary 
and  proper  for  carrying  into  effect  the  powers"  vested 
in  the  Government.  It  was  created  for  national  pur- 
poses only,  though  it  was  undoubtedly  capable  of 
transacting  private  as  well  as  public  business ;  and 
while  it  was  the  great  instrument  by  which  the  fiscal 
operations  of  the  Government  were  effected,  it  was 
also  engaged  in  trading  with  individuals  for  its  own 
advantage.  It  could  not,  on  any  rational  calculation, 
effect  its  object  unless  it  were  endowed  with  the  faculty 
of  dealing  in  money,  which,  indeed,  was  necessary  to 
render  the  Bank  competent  to  fulfil  the  purposes  of  the 
Government,  and  was,  therefore,  constitutionally  and 
rightfully  ingrafted  on  the  institution. 

The  Acts  of  Congress^  giving  to  the  United  States 
a  priority  in  the  payment  of  debts  over  other  creditors, 
are  held,  as  we  have  seen,  to  be  constitutional  and 
valid,  as  founded  on  this  authority  of  Congress  to  make 
all  laws  necessary  and  proper  to  carry  into  effect  the 
powers  vested  by  the  Constitution  in  the  General  Gov- 
ernment. That  Government  is  to  pay  the  debts  of 
the  Union ;  and  is  authorized  to  use  the  means  most 
eligible  to  effect  that  object.     K  this  claim  of  priority 

1  4  Wheat.  316.  89  JUd.  860. 

3  Passed  August  4,  1790,  May  2,  1792,  March  3,  1797. 


400  LECTUKES   ON 

interferes  with  the  right  of  a  State  respecting  the  dig- 
nity of  debts,  and  defeats  the  measures  it  would  other- 
wise be  entitled  to  adopt  to  secure  them,  it  is  a 
necessary  consequence  of  the  supremacy  of  the  laws 
of  the  Union  on  all  subjects  to  which  the  Legislative 
power  of  Congress  extends.^  From  the  construction 
given  by  the  Supreme  Court  to  the  fifth  section  of  the 
Act  of  1797,  the  following  points  are  clearly  estab- 
lished, viz : — 

1.  That  no  lien  is  created  by  the  statute. 

2.  That  the  priority  established  can  never  attach 
while  the  debtor  continues  the  owner,  and  in  possession 
of  the  property,  although  he  may  be  unable  to  pay  his 
debts. 

3.  That  no  evidence  can  be  received  of  the  insol- 
vency of  the  debtor  until  he  has  been  divested  of  the 
property  in  one  of  the  modes  stated  in  the  section. 

4.  Whenever  the  debtor  is  thus  divested  of  his  prop- 
erty, the  person  who  becomes  invested  with  the  title 
is  thereby  made  a  trustee  for  the  United  States,  and  is 
bound  to  pay  their  debt  first,  out  of  the  proceeds  of 
the  bankrupt's  or  insolvent's  property. 

The  priority  of  the  United  States  attaches  as  well 
with  respect  to  debts  owing,  but  not  yet  payable,  as  to 
those  already  payable,  where  death  or  insolvency  takes 
place.  This  construction  is  consistent  with  the  lan- 
guage and  reason  of  the  Act,  and  required  by  the 
public  policy  which  led  to  its  passage.^ 

The  right  of  priority  of  payment  of  debts  due  to  the 
Government,  is  a  prerogative  of  the  British  Crown, 
well  known  to  the  Common  Law.     It  is  founded,  not 

1  2  Cranch,  358  ;  1  Cond.  420.  9  q  Peters,  29. 


CONSTITUTIONAL  JTJBISPRUDENCE.  401 

SO  much  upon  any  personal  advantage  to  the  Sovereign, 
as  upon  motives  of  public  policy,  in  order  to  secure  an 
adequate  revenue  to  sustain  the  public  burdens,  and 
discharge  the  public  debts.  The  claim  of  the  United 
States,  however,  does  not  stand  upon  any  sovereign 
prerogative,  but  is  exclusively  founded  upon  their  own 
statutes.  The  same  policy  which  governed  in  the  case 
of  the  royal  prerogative  may,  nevertheless,  be  clearly 
traced  in  these  statutes  ;  and  as  that  policy  has  mainly 
reference  to  the  public  good,  there  is  no  reason  for 
giving  them  a  strict  and  narrow  interpretation.  Like 
aU  other  statutes  of  this  nature,  they  should  receive  a 
fair  and  liberal  construction,  according  to  the  just  im- 
port of  the  terms. 

II.  The  next  provision  for  giving  effect  to  the  powers 
of  the  Federal  Constitution  is  that  requiring  the  Sen- 
ators and  Representatives  in  Congress,  and  the  members 
of  the  State  Legislatures,  and  all  Executive  and  Judicial 
officers,  both  of  the  United  States  and  of  the  several 
States,  to  be  bound  by  oath  or  affirmation  to  support  the 
Constitution  of  the  United  States. 

The  election  of  the  President  and  Senate  depends, 
in  all  cases,  on  the  Legislatures  of  the  several  States ; 
and  the  election  of  members  of  the  House  of  Repre- 
sentatives depended  in  the  first  instance,  and  still,  in 
fact,  depends  on  the  same  authority,  and  will  probably 
always  be  conducted  by  the  officers,  and  according  to 
the  laws  of  the  States.  In  order,  therefore,  to  insure 
the  stability,  and,  as  far  as  possible,  the  perpetuity  of 
the  Federal  Government,  it  was  necessary  to  provide 
a  sanction  similar  to  that  relied  on  for  the  continuance 
of  the  State  Governments,  and  to  obtain,  by  an  appeal 
to  the  consciences  of  individuals,  an  equal  security  in 
34* 


402  LECTUKES   ON 

both  cases.  This  dependence  on  the  action  of  the  State 
Governments  for  the  organization  of  the  Executive 
and  Legislative  branches  of  the  National  Government, 
and  especially  for  the  appointment  of  electors  of  Presi- 
dent and  Vice-President,  and  the  election  of  Senators, 
has  been  used  as  an  argument  in  support  of  the  right 
of  a  State,  in  virtue  of  its  sovereign  power,  to  secede 
from  the  Union.  But  were  it  even  true  that  the  Legis- 
lative* powers  of  the  Union  would  be  suspended  if  all 
the  States,  or  a  majority  of  them,  were  to  refuse  to  elect 
Senators,  yet,  if  any  one  State  should  refuse.  Congress 
would  not,  on  that  account,  be  the  less  capable  of  per- 
forming all  its  functions.  The  same  reasoning  would 
apply  to  any  number  of  States  less  than  a  majority  of 
the  whole ;  and  the  argument  founded  on  this  delin- 
quency proves  rather  the  subordination  of  the  parts  to 
the  whole  than  the  complete  independence  of  any  one 
of  them.  The  framers  of  the  Constitution  were  unable 
to  make  any  provision  which  should  protect  it  against 
a  general  combination  of  the  States  or  of  the  People 
for  its  destruction,  and,  conscious  of  this  inability,  they 
did  not  make  the  attempt.  But  they  were  able  to 
provide  against  the  operation  of  measures  adopted  in 
any  one  State,  the  tendency  of  which  might  be  to 
arrest  the  execution  of  the  laws  of  the  Union  ;  and 
this  they  have  done. 

To  this  it  may  be  added,  that  they  provided  against 
a  dissolution  of  the  Union,  and  against  any  direct  or 
indirect  attempts  on  the  part  of  a  State  to  withdraw 
from  the  Union,  not  only  by  this  provision  requiring  all 
officers,  civil  and  military,  of  the  State  Governments 
to  take  an  oath  to  support  the  Feddral  Constitution, 
but   by  creating   distinct  Executive   and  Judicial   de- 


CONSTITUTIONAL  JURISPRUDENCE.  403 

partments,  and  by  adopting  various  other  provisions, 
operating  immediately  and  individually  upon  the  People 
of  the  several  States.  Thus  the  Constitution  exacts  no 
pledge  from  the  States  to  maintain  its  inviolability,  but 
makes  its  preservation  depend  on  individual  obligation 
and  duty.  It  permits  no  man  to  sit  in  the  Legisla- 
ture of  a  State  who  is  not  first  sworn  to  support  the 
Constitution  of  the  United  States.  From  the  obliga- 
tion of  this  oath  no  State  power  can  discharge  them. 
All  the  members  of  all  the  State  Legislatures  are  as  re- 
ligiously bound  to  support  the  Federal  Constitution  as 
they  are  to  support  their  own  State  Constitution,  and 
as  solemnly  sworn  to  do  so  as  the  members  of  Con- 
gress. No  member  of  a  State  Legislature  can  refuse 
to  proceed  at  the  appointed  time  to  elect  Senators  in 
Congress,  or  to  provide  for  the  choice  of  Electors  of 
President  and  Vice-President,  any  more  than  the  mem- 
bers of  the  Senate  of  the  United  States  can  refuse, 
when  the  appointed  time  arrives,  to  meet  the  members 
of  the  other  House  to  witness  the  counting  of  the  votes 
given  by  the  Electors  for  those  oflScers,  and  ascertain 
who  are  chosen.  In  either  case,  the  duty  binds  with 
equal  strength  the  conscience  of  the  individual,  and  is 
imposed  on  every  member  by  an  oath  in  the  same 
words.  It  cannot,  therefore,  be  a  matter  of  discretion 
with  the  States  whether  they  will  continue  the  Govern- 
ment or  break  it  up,  by  refusing  to  elect  Senators  and 
appoint  Electors.  Nor  can  the  members  of  their  Legis- 
latures neglect  or  evade  those  duties,  when  the  times 
arrive  for  their  performance,  without  such  a  violation 
of  their  oaths  and  duties  as  would  destroy  any  other 
Government. 

HI.  Among  the  provisions  for  giving  efficacy  to  the 


404  LECTURES   ON 

Federal  Legislative  powers  may  be  included  those  spec- 
ially vested  in  the  Executive  and  Judicial  departments, 
and  especially  the  provision  extending  the  jurisdiction 
of  the  Federal  Courts  to  all  cases  arising  under  the 
Constitution  of  the  United  States.  But  these  powers 
have  already  been  subjected  to  particular  examination 
in  our  review  of  the  structure  and  organization  of  the 
Government,  and  do  not,  perhaps,  require  any  further 
elucidation.  It  may,  however,  be  as  well  here  to  ob- 
serve, that  the  provision  last  specified  in  effect  creates 
in  the  Supreme  Court  of  the  United  States  a  common 
ARBITER  in  all  cases  of  collision  between  the  power  and 
authority  of  the  Union  and  of  the  several  States.  Such 
collisions,  we  have  seen,  have  already  taken  place,  in 
times,  too,  of  no  extraordinary  commotion,  and  have 
hitherto  been  happily  adjusted.  "  But  a  Constitution," 
said  its  great  Judicial  oracle,^  "is  framed  for  ages  to 
come,  and  designed  to  approach  immortality  as  nearly 
as  human  institutions  can  attain  to  it.  Its  course  can- 
not always  be  tranquil ;  experience  as  well  as  reason 
teaches  us  that  it  is  exposed  to  storms  and  tempests." 
The  same  lesson  had  been  taught  to  its  framers  under 
the  Confederation,  and  had  confirmed  the  suggestions 
of  their  own  experience,  and  induced  them  to  devise 
a  new  form  of  Government  for  themselves  and  their 
posterity.  They  accordingly  provided  it,  as  far  as  its 
nature  would  permit,  with  the  means  of  self-preservation 
from  the  perils  it  was  destined  to  encounter.  They 
well  understood  that  no  Government  should  be  so  de- 
fective in  its  organisation  as  not  to  contain  within  itself 
the  means  of  securing  the  execution  of  its  own  laws 

1  Chief  Justice  Marshall. 


CONSTITUTIONAL   JURISPRUDENCE.  405 

against  other  dangers  than  those  of  ordinary  occurrence. 
They  were  aware  that  courts  of  justice  were  the  means 
most  usually  employed  ;  and  under  the  full  pressure  of 
the  evils  which  had  arisen  from  the  want  of  such  a 
power  under  the  Confederation,  they  created  in  the 
new  system  a  distinct  and  independent  Judicial  depart- 
ment ;  they  conferred  on  it  the  power  of  construing  the 
Constitution  and  laws  of  the  Union,  in  the  last  resort, 
in  all  cases,  and  of  preserving  them  from  all  violation 
from  any  quarter,  so  far  as  Judicial  decisions  could 
preserve  them ;  and  they  conferred  on  the  Chief  Execu- 
tive Magistrate  the  powers  necessary  to  carry  into  effect 
the  judgments  and  decrees  of  the  Courts,  either  directly 
in  the  Constitution  itself,  or  indirectly,  by  vesting  in  the 
Legislative  department  authority  to  do  so. 

IV.  The  next  provision  for  giving  effect  to  the  powers 
of  the  General  Government  is  the  declaration  that  the 
"  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land ;  and  the 
judges  in  every  State  shall  be  bound  thereby,  any  thing 
in  the  Constitution  and  laws  of  any  State  to  the  contra/ry 
notwithstanding y  ^ 

Without  this  provision,  the  Constitution  would  have 
been  evidently  and  radically  defective.  To  be  fully 
sensible  of  this,  we  need  only  suppose,  with  the  authors 
of  "  The  Federalist,"  ^  that  the  supremacy  of  the  State 
Constitutions  had  been  left  complete  by  a  saving 
clause  in  their  favor.  In  the  first  place,  as  those  Con- 
stitutions invested  the  State  Legislatures  with  absolute 

1  Const.  U.  S.,  Art.  VI.  Sect.  ii.  2  No.  44. 


406  LEOTUEES   ON 

sovereignty  in  all  cases,  not  excepted  by  the  Arti- 
cles of  Confederation,  all  the  authorities  contained  in 
the  present  Constitution,  so  far  as  they  exceed  those 
enumerated  in  the  Confederation,  would  have  been 
annulled,  and  the  new  Congress  would  have  been  re- 
duced to  the  same  impotent  condition  as  their  prede- 
cessors, which  it  was  the  avowed  and  leading  design 
of  the  Convention  in  this  particular  to  amend.  In  the 
next  place,  as  the  Constitutions  of  some  of  the  States 
did  not  expressly  and  fully  recognize  the  powers  even 
of  the  former  Confederacy,  an  express  saving  of  such 
Constitutions  would  in  those  States  have  brought  in 
question  every  power  contained  in  the  new  Federal 
Constitution.  In  the  third  place,  as  the  Constitutions 
of  the  States  differ  much  from  each  other,  it  might 
have  happened  that  a  treaty,  or  national  law  of  great 
importance  to  the  States,  would  interfere  with  some, 
and  not  with  others,  of  the  State  Constitutions,  and 
would,  consequently,  have  been  valid  in  some  States, 
and  not  in  others.  In  the  last  place,  there  would  have 
been  exhibited  a  system  (such  as  some  modern  theorists 
and  political  visionaries  have  conceived  the  Federal 
Constitution  to  be)  founded  on  an  inversion  of  the 
fundamental  principles  of  all  Government,  in  which 
the  authority  of  the  whole  society  would  be  subordinate 
to  that  of  the  parts,  the  head  under  the  direction  of 
each  of  the  members. 

But  the  provision  in  question  marks  the  characteristic 
distinctions  between  the  Government  of  the  Union  and 
the  Governments  of  the  States ;  and  when  the  Consti- 
tution or  laws  of  a  State  have  been  deemed  repugnant 
to,  or  incompatible  with,  the  Federal  Constitution,  with 
laws  made  in  pursuance  of  it,  or  with  treaties  negotiated 


CONSTITUTIONAL  JURISPRUDENCE.  407 

under  its  authority,  the  validity  of  the  former  has  been 
inquired  into  and  decided  upon  in  a  variety  of  cases ; 
and  in  every  instance  where  the  repugnance  existed, 
such  State  Constitutions  or  laws,  or  such  parts  of  them 
as  were  incompatible  with  the  former,  have  been,  as  we 
have  seen,  judicially  abrogated  and  annulled.  In  the 
important  case  of  the  Bank  of  the  United  States,  re- 
ferred to  in  the  last  Lecture,^  it  was  declared  that  the 
law  of  Maryland  imposing  a  tax  on  the  Bank  was 
unconstitutional  and  void,  on  the  ground  that  the  State 
Governments  have  no  right  to  tax  any  of  the  consti- 
tutional means  employed  by  the  Government  of  the 
Union  to  execute  its  constitutional  powers ;  nor,  by 
taxation  or  otherwise,  to  retard,  impede,  burden,  or  in 
any  manner  control  the  operation  of  constitutional  laws 
enacted  by  Congress,  to  carry  into  effect  the  powers 
vested  in  the  National  Government. 

It  was  contended,  on  that  occasion,  on  behalf  of  the 
State  authority,  that  the  powers  of  the  General  Gov- 
ernment were  delegated  by  the  State  Governments,  and 
that  the  Federal  authority  must  be  exercised  in  sub- 
ordination to  the  States,  who  alone  possessed  supreme 
dominion.  But  the  impossibility  of  sustaining  such 
a  proposition  was  fully  and  clearly  demonstrated.  It 
was  admitted,  indeed,  that  the  Convention  that  framed 
the  Constitution  was  elected  by  the  State  Legislatures ; 
but  that  instrument,  when  it  came  from  the  hands  of 
the  Convention,  was  a  mere  proposal,  without  actual 
obligation,  or  any  pretension  to  it.  It  was  reported  to 
the  then  existing  Congress,  to  "  be  submitted  to  a  Con- 
vention of  delegates  to  be  chosen  in  each  State  by  the 

1  4  Wheat.  316. 


408  LECTURES   ON 

People  thereof,  under  the  recommendation  of  its  Legis- 
lature, for  their  assent  and  ratification."  This  mode  of 
proceeding  was  adopted,  and  the  proposed  Constitution 
was  accordingly  submitted  to  the  People,  who  acted 
upon  it  in  the  only  manner  in  which  they  can  act 
effectually  and  wisely  on  such  subjects,  by  assembling 
in  Conventions.  They  assembled  in  their  respective 
States,  not  merely  from  convenience,  but  from  neces- 
sity. There  existed  no  authority  under  the  Confedera- 
tion, as  now  exists  under  the  Constitution,  for  calling 
•a  General  Convention ;  and  if  such  authority  had  ex- 
isted, that  mode  would  not  have  been  the  proper  one, 
in  a  case  where  the  People  were,  in  effect,  to  pass  upon 
virtual  amendments  and  partial  abrogations  of  their 
State  Constitutions.  They  assembled  and  acted,  there- 
fore, in  their  several  States,  the  People  of  each  State 
thus  exercising  a  separate  and  independent  voice  in 
the  adoption  of  the  Federal  Constitution.  But  the 
measure  they  adopted  did  not  on  that  account  cease 
to  be  the  act  of  the  People  themselves,  or  become  the 
measure  of  the  State  Governments. 

From  these  State  Conventions,  then,  the  Constitu- 
tion of  the  United  States  owes  its  whole  authority. 
The  instrument  submitted  to  them  purports  on  the  face 
of  it  to  proceed  from  "  the  People  of  the  United  States" 
to  be  "  ordained  and  established"  in  their  name ;  and 
is  declared  to  be  thus  ordained  and  established  "  in 
Qrder  to  form  a  more  perfect  union,  to  establish  justice, 
insure  domestic  tranquillity,  and  secure  the  blessings 
of  liberty  to  them  and  their  posterity."  Now,  if  the 
People  of  the  United  States  had  never  before  acquired 
a  common  character,  they  assumed  it  then.  The  pre- 
amble to  the   Federal  Constitution,  containing  these 


CONSTITUTIONAL  JUKISPRUDENCE.  409 

declarations,  is  an  essential  and  necessary  part  of  that 
instrument ;  and  it  not  only  enumerates  the  objects  for 
which  it  was  formed,  but  designates  the  parties  by 
whom,  and  by  whose  authority  alone,  it  was  "  ordained 
and  established."  The  assent  of  the  States  in  their 
sovereign  capacities  is  implied,  if  not  expressed,  in 
calling  their  Conventions,  and  thus  submitting  the  new 
scheme  of  Government  to  the  People.  But  the  People 
of  each  State  were  at  perfect  liberty  to  accept  or  reject 
it,  and  their  act  was  final.  The  Constitution  required 
not  the  affirmance  of  the  State  Governments,  nor  could 
it  be  negatived  by  their  act ;  but,  when  ratified  by  the 
People,  it  became  of  perfect  obligation,  and  bound  the 
States. 

It  has,  to  be  sure,  been  said  that  the  People  had 
already  surrendered  all  their  powers  to  the  State  Gov- 
ernments, and  had  nothing  more  to  give.  But  the 
question  whether  the  People  may  resume  and  modify 
the  powers  granted  by  them  to  the  State  or  General 
Governments  for  their  own  benefit,  does  not,  surely, 
remain  to  be  settled  in  this  country.  The  same  sov- 
ereign powers  which  had  separately  estabfished  the 
State  Governments,  united  with  each  other  in  forming 
a  paramount  sovereignty,  and  establishing  a  Supreme 
Government.  For  this  purpose  each  yielded  a  portion 
of  its  individual  sovereignty,  and  modified  its  State 
Constitution,  by  rendering  it  subordinate  to  the  Fed- 
eral power.  Their  authority  to  do  this  cannot  for  a 
moment  be  seriously  doubted.  Much  more,  indeed, 
might  the  legitimacy  of  the  Federal  Government  have 
been  questioned,  had  it  been  erected  by  the  States  to 
operate  upon  the  individual  citizens  of  the  several 
States.  The  powers  delegated  to  the  State  Govern- 
35 


410  LECTURES    ON 

ments  were  to  be  exercised  by  themselves,  not  by  a 
distinct  and  independent  sovereignty  erected  by  them. 
To  the  formation  of  a  league  such  as  the  Confedera- 
tion, the  State  Governments  «vere  certainly  competent. 
But  when,  "  in  order  to  form  a  more  perfect  unipn^^ 
and  change  that  league  into  an  effective  Government, 
clothed  with  high  sovereign  powers  for  national  objects, 
and  acting  directly  on  the  People  as  individuals,  the 
necessity  of  referring  it  to  the  People  themselves,  and 
deriving  its  powers  immediately  from  them,  was  univer- 
sally felt  and  acknowledged  ;  and  the  Article  of  the 
Constitution  which  provides,  as  one  of  the  modes  for 
its  amendment,  a  Convention  of  the  People  of  the  United 
States,  is  conclusive  as  to  the  real  character  of  the 
instrument,  and  the  sense  in  which  it  must  have  been 
understood. 

The  Government  of  the  Union,  then,  is  emphatically 
and  truly  a  Government  of  the  People.  In  form  and 
substance,  it  emanates  from  them  ;  its  powers  are 
granted  by  them,  and  are  to  be  exercised  directly  on 
them  as  individuals,  and  for  their  common  benefit ;  and 
can  be  abrogated  only  by  their  consent.  This  Govern- 
ment, however,  is  acknowledged  by  all  to  be  a  Govern- 
ment of  enumerated  powers.  The  principle  that  it  can 
only  exercise  the  powers  granted  to  it  is  admitted  on 
all  hands ;  but  questions  respecting  the  extent  of  the 
powers  actually  granted  to  it  are,  as  we  have  seen, 
perpetually  arising,  and  will  probably  continue  to  arise, 
as  long  as  the  system  shall  exist.  In  discussing  these 
questions,  the  conflicting  powers  of  the  General  and 
State  Governments  must  be  brought  into  view ;  and 
the  supremacy  of  their  respective  laws,  when  in  oppo- 
sition to  each  other,  must  be  settled  by  that  power  in 


CONSTITUTIONAL  JURISPRUDENCE.  411 

the  Federal   Constitution  which  was   created,  among 
other  purposes,  for  this  one  expressly.     Though  limited 
in  its  powers,  it  would  seem  to  result  necessarily,  from 
the  nature  of  the  General  Government,  that  it  should 
be  supreme  within  its  sphere  of  action.     It  is  the  Gov- 
ernment of  all  ;    its  powers  are  delegated    by  all  ;  it 
represents  all ;  and  it  acts  for  all,  and  upon  aU.    Though 
any  one  State  may  be  willing  to  control  its  operations, 
no  other  State  is  willing  that  other  States  should  con- 
trol them.     The  Nation,  on  those  subjects  upon  which 
it  can  act  at  aU,  must  necessarily  bind  its  component 
parts.     But  the  question  is  not  left  to  mere  reason,  the 
People  have  in  express  terms  decided  it,  by  adopting 
the  clause  now  under  discussion,  in  conjunction  with 
that  requiring  the  oath  to  support  the  Federal  Consti- 
tution to  be  taken  by  every  State,  as  well  as  Federal 
officer.     And  yet  we   have  witnessed   an    attempt    on 
the  part  of  one  of  the  States,  not  merely  to  assert  and 
vindicate  its  own  supremacy,  in  cases  of  collision  with 
the  authority  of  the  Union,  and  to  reject  the  control 
and  jurisdiction  of  the  supreme  arbiter  on  all  consti- 
tutional questions,  but  by  its  own  act  to  repudiate  and 
nullify  an   Act  of  Congress,  which  it  took  upon  itself 
to  pronounce  to  be  contrary  to  the  Constitution,  and 
insisted  that  its  decision  was  final.     This  monstrous 
claim  it  is  even  pretended  to  reconcile  with  the  doc- 
trines of  the  Federal   Constitution  itself,  founding  it 
principally  on  the  amendment  which  declares  that  "  the 
powers  not  delegated  to  the   United   States,  nor  pro- 
hibited to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the   People,"  and  thereby  assuming  that 
the   power  exercised  by  Congress   in  passing  the  law 
in  question  was  not  delegated  to  the  General  Govern- 


412  LECTURES   ON 

ment,  and  that  the  power  claimed  by  the  State  was  not 
prohibited  to  it  by  the  Federal  Constitution,  which  were 
no  other  than  the  very  points  in  controversy. 

It  was,  moreover,  asserted  that  any  State  had  the 
right  to  arrest  the  execution  of  an  Act  of  Congress, 
until  three  fourths  of  the  States  should  approve  it ;  and, 
in  the  mean  time,  to  resist  all  attempts  to  enforce  it. 
The  equally  untenable  position  was  also  contended  for, 
that  a  State,  at  its  pleasure,  had  a  right  to  secede 
peaceably,  and  separate  permanently  from  the  Union, 
without  necessarily  producing  a  revolution  in  the  Gov- 
ernment. And  tjiese  extravagant  claims  were  sought 
to  be  justified  by  the  doctrines  put  forth  in  the  cele- 
brated Virginia  Resolutions  of  1798,^  and  especially 
by  some  expressions  in  those  of  Kentucky  in  1799  — 
erroneously,  as  it  seems,  attributed  to  Mr.  Jefferson. 

These  Resolutions,  as  is  well  known,  were  called 
forth  by  the  enactment  of  the  Alien  and  Sedition 
Laws  by  Congress ;  and  it  is  equally  well  known  that 
JVIr.  Madison,  although  not  then  a  member  of  the  Vir- 
ginia Legislature,  was  the  author  not  only  of  the  Reso- 
lutions of  1798,  but  of  the  Report  by  which  they  were 
introduced.  Upon  being  appealed  to,  upon  the  occa- 
sion now  in  question,  by  several  of  his  correspondents, 
he  vindicated  those  documents  from  the  construction 
given  to  them  in  favor  of  nullification,  and  referred  to  a 
letter  of  Mr.  Jefferson's  to  prove  the  Resolutions  of  the 
Legislature  of  Kentucky,  in  which  that  word  occurs, 

1  These  famous  Resolutions  were  reported  by  John  Taylor,  of  Caro- 
line ;  but  Mr.  Madison  was  always  reputed  to  be  their  author ;  and 
in  a  letter  to  Mr.  James  Robertson,  written  in  March,  1831,  he  dis- 
tinctly avows  the  authorship,  both  of  the  Resolutions  and  the  Report. 
See  "  Select  Correspondence  of  Mr.  Madison." 


CONSTITUTIONAL  JURISPRUDENCE.  413 

were  not  drawn  up  by  him,  although  that  gentleman 
was  the  author  of  those  adopted  by  it  the  year  pre- 
vious, "  which  do  not,"  however,  as  he  says,  "  contain 
this,  or  any  equivalent  word."  ^ 

From  a  "  Memorandum  on  Nullification,"  written  by 
the  survivor  of  those  venerable  and  illustrious  states- 
men, in'  the  eighty-sixth  and  last  year  of  his  life,  thus 
proving  at  once,  both  his  solicitude  upon  the  subject 
and  the  undiminished  vigor  of  his  mind  in  treating  it, 
Mr.  Madison  observes  that  "  although  the  Legislature 
of  Virginia,  at  a  late  session,  declared  almost  unani- 
mously ,2  that  South  Carolina  was  not  supported  in  her 
doctrine  of  nullification  by  the  Resolutions  of  1798, 
it  appears  that  those  Resolutions  are  still  appealed  to 
as  expressly  or  constructively  favoring  the  doctrine. 
And  what,"  he  asks,  "  is  the  text  in  the  proceedings  of 
Virginia  which  this  spurious  doctrine  of  nullification 
claims  for  its  patronage  ?  "  "  It  is  found,"  he  adds,  "  in 
the  third  of  the  Resolutions  of  1798.^     Now,  is  there 

1  In  a  letter  of  May  31,  1830,  to  J.  C.  Cabell,  Mr.  Madison  vindi- 
cates both  Mr.  Jefferson  and  Mr.  Monroe  from  any  participation  in 
the  Kentucky  Resolutions  of  1799,  and  refers  to  a  letter  to  W.  C. 
Nicholas,  in  the  3d  vol.  of  Mr.  Jefferson's  Correspondence,  page  429, 
to  prove  it. 

2  Alluding  to  the  Resolutions  to  that  effect,  passed  by  the  Legisla- 
ture, in  1835. 

3  The  third  of  these  Resolutions  is  as  follows :  "That  this  Assembly 
doth  explicitly  and  peremptorily  declare,  that  it  views  the  powers  of 
the  Federal  Government  as  resulting  from  the  compact,  to  which  the 
States  are  parties,  as  limited  by  the  plain  sense  of  the  instrument 
constituting  that  compact ;  and  that  in  case  of  a  deliberate,  palpable, 
and  dangerous  exercise  of  other  powers  not  granted  by  the  said  com- 
pact, the  States  who  are  the  parties  thereto,  have  the  right,  and  are 
in  duty  bound  to  interpose  for  arresting  the  progress  of  the  evil,  and 

35* 


414  LECTURES   ON 

anything  here,"  he  demands,  "  from  which  a  single 
State  can  infer  a  right  to  arrest  or  annul  an  act  of  the 
General  Government,  which  it  may  deem  unconstitu- 
tional ?  So  far  from  it,"  he  declares,  "  that  the  obvi- 
ous and  proper  inference  precludes  such  a  right.  In  a 
word,"  he  adds,  "  the  nullifying  claims,  if  reduced  to 
practice,  instead  of  being  the  conservative  principle  of 
the  Constitution,  would  necessarily,  and  it  may  be  said, 
obviously,  be  a  deadly  poison." 

"  The  true  question,  therefore,"  as  he  concludes,  "  is 
whether  there  be  a  Constitutional  right  in  a  single  State 
to  nullify  a  law  of  the  United  States  ? "  He  then  pro- 
ceeds to  remark  on  "  the  absurdity  of  such  a  claim,  in 
its  naked  suicidal  form,  and  "  turns  to  it  as  modified 
by  South  Carolina,  into  a  right  in  every  State  to  resist 
within  itself  the  execution  of  a  Federal  law,  deemed 
by  it  to  be  unconstitutional,  and  to  demand  a  Conven- 
tion of  the  State?,  to  decide  the  question  of  constitu- 
tionality, the  annulment  of  the  law  to  continue  in  the 
mean  time,  and  to  be  permanent,  unless  three  fourths 
of  the  States  concur  in  overruling  the  annulment." 

"  Thus,"  he  continues,  "  during  the  temporary  nulli- 
fication of  the  law,  the  results  would  be  the  same  as 
those  proceeding  from  an  unqualified  nullification,  and 
the  result  of  a  Convention  might  be  that  seven  out  of 
twenty-four  States  might  make  the  temporary  results 
permanent. 

"  It  follows,  that  any  State  which  could  obtain  the 
concurrence  of  six  others,  might  abrogate  any  law  of 
the  United  States  whatever,  and  give  to  the  Constitu- 

for  maintaining  within  their  respective  limits  the  authorities,  rights, 
and  liberties  appertaining  to  them." 


CONSTITUTIONAL  JURISPRUDENCE.  415 

tion,  constructively,  any  shape  they  pleased,  in  oppo- 
sition to  the  construction  and  will  of  the  other  seven- 
teen.^ Every  feature  of  the  Constitution  might  thus  be 
successively  changed ;  and  after  a  scene  of  unexampled 
confusion  and  distraction,  what  had  been  unanimously 
agreed  to  as  a  whole,  would  not,  as  a  whole,  be  agreed 
to  by  any  single  party." 

But  these  heresies  were  promptly  met  and  ably  re- 
futed by  the  proclamation  issued  on  the  occasion  by 
the  President  of  the  United  States.^  This  admirable 
document,  which  confers  more  durable  and  honorable 
fame  on  the  name  of  General  Jackson  than  even  the 
victory  of  New  Orleans,  exhibits  the  true  doctrines  of 
the  Constitution  in  strict  conformity  with  those  princi- 
ples of  construction  which  I  have  endeavored  to  explain 
and  enforce.  In  language  becoming  the  dignity  and 
responsibility  of  his  station,  the  Chief  Magistrate  of 
the  Union  reminds  the  individuals  concerned  in  these 
proceedings  of  their  paramount  obligations  as  citizens 
of  the  United  States,  and  warns  them  of  the  treason- 
able tendency  of  their  acts ;  and  upon  his  subsequent 
reference  of  the  subject  to  the  National  Legislature,  he 
recommended  the  adoption  of  such  measures  as  were 
necessary  to  enforce  the  laws  of  the  Union,  and  sup- 
press the  opposition  to  their  execution,  devised  by  evil 
councils  and  authorized  in  an  evil  hour,  by  the  State 
of   South   Carolina.     The   Act  required  was   passed  ; 

^  This  was  -written  when  the  number  of  States  was  twenty-four. 
Their  number  being  now  thirty-one,  the  corresponding  proportions 
would  be  eight  to  twenty-three,  to  produce  the  same  results. 

2  This  celebrated  state  paper  is  well  known  to  have  been  the  pro- 
duction of  the  late  Edward  Livingston,  then  Secretary  of  State.  Vide 
Appendix  E. 


416  LECTURES   ON 

and  thus  has  every  department  of  the  Government 
concurred  in  the  declaration  approved  and  sanctioned 
by  a  vast  majority  of  the  People,  that  the  Government 
of  the  United  States  is  supreme  within  its  limited  juris- 
diction, and  that  its  laws  in  pursuance  of  the  Constitu- 
tion form  the  supreme  law  of  the  land,  "  anything  in 
the  Constitution  and  laws  of  any  State  to  the  contrary 
notwithstanding;"  and  that  the  existence  and  effect 
of  a  collision  between  them  must  be  decided  by  the 
general  head,  and  not  by  any  of  the  members  of  the 
Union. 

V.  The  last  provision  contained  in  the  Constitution 
for  giving  efficacy  to  its  powers  is  that  by  which  effect 
and  operation  were  given  to  the  system  by  declaring 
that  "  the  ratifications  of  the  conventions  of  nine  States 
should  be  sufficient  for  its  establishment  between  the 
States  so  ratifying-  the  same."  ^ 

The  express  authority  of  the  People  alone  could 
give  validity  to  the  Constitution  ;  and  to  have  required 
the  unanimous  ratification  of  the  People  of  the  several 
States  would  have  subjected  the  essential  interests  of 
the  whole  to  the  caprice  or  corruption  of  the  smallest 
majority  in  any  one  State.  But  a  question  of  a  very 
delicate  nature  arose  with  respect  to  this  article  when 
the  Constitution  was  proposed  for  adoption  —  a  ques- 
tion similar  in  its  character  to  the  one  which  has  just 
been  discussed.  It  was  asked  by  the  objectors  to  the 
Federal  system,  upon  what  principle  it  was  that  the 
Confederation,  which  stood  in  the  solemn  form  of  a 
compact  between  the  States,  could  be  superseded  with- 
out unanimous  consent;  and  it  was  thereupon  suggested 

1  Const  U.  S.,  Art.  VIL 


CONSTITUTIONAL  JURISPRUDENCE.  417 

by  Mr.  Madison,  in  one  of  the  numbers  of  "  The  Fed- 
eralist," ^  that  an  answer  might  be  found  without  search- 
ing beyond  the  principles  of  the  former  compact  itself. 
It  had  been  noted  among  its  defects,  that  in  many  of 
the  States  it  had  received  no  higher  sanction  than  a  mere 
Legislative  ratification.  The  principle  of  reciprocity, 
therefore,  seemed  to  require  that  its  obligation  on  the 
other  States  in  which  it  had  been  ratified  by  the  People 
in  their  Conventions  should  be  reduced  to  the  same 
standard.  A  compact  between  independent  sovereigns, 
founded,  as  was  the  Confederation,  upon  acts  of  Legis- 
lative authority,  could  pretend  to  no  higher  validity 
than  a  league  or  treaty  between  the  parties ;  and  it  is 
the  established  doctrine  that  all  the  articles  of  a  treaty 
are  mutual  conditions ;  a  breach  of  any  one  article  is 
ti  breach  of  the  whole  ;  and  a  breach  uoiiimitted  by  any 
of  the  parties  absolves  the  others,  and  authorizes  them, 
if  they  choose,  to  pronounce  the  compact  violated,  and 
at  an  end. 

Had  it  been  necessary  to  appeal  to  these  principles 
as  a  justification  for  dispensing  with  the  consent  of 
particular  States  to  a  dissolution  of  the  compact  then 
existing,  it  would  by  no  means  have  been  difficult  to 
confront  the  objecting  parties  with  multiplied  and  im- 
portant infractions  of  the  Articles  of  Confederation. 
But  a  more  direct  answer  was  given  to  them  by  recur- 
ring to  the  absolute  necessity  of  the  case,  to  the  great 
principle  of  self-preservation,  to  the  transcendent  law 
of  God  and  nature,  which  declares  the  safety  and  hap- 
piness of  society  to  be  the  objects  which  all  political 
institutions  should  aim  to  accomplish,  and  for  which 

1  No.  43. 


418  LECTURES   ON 

they  may  all  be  sacrificed ;  and  from  what  is  known  of 
the  state  of  public  affairs  at  that  portentous  crisis,  we 
cannot  doubt  that  this  answer  was  felt  to  be  conclusive. 
It  is,  however,  well  worthy  of  observation,  that  it  was 
not  pretended  on  this  occasion  that  any  of  the  States 
could  withdraw  even  from  the  Confederation,  consid- 
ered merely  as  a  treaty  of  alliance,  at  its  mere  will 
and  pleasure;  nor  absolve  itself  at  its  own  discretion 
from  its  perpetual  obligation,  except  in  cases  of  the 
extreme  urgency  of  self-preservation,  or  of  the  breach 
or  violation  of  the  compact  by  some  other  of  the  par- 
ties, of  which  the  several  parties,  from  the  very  nature 
of  the  Confederation,  as  a  treaty  between  independent 
sovereigns,  w^ere  themselves  the  judges.  It  has,  never- 
theless, been  contended,  as  we  have  already  had  oc- 
casion to  lament,  that  a  State  has  a  right,  under  the 
present  Constitution,  independently  of  the  natural  right 
of  self-preservation,  and  resistance  to  intolerable  oppres- 
sion, to  secede,  at  its  own  will  and  discretion,  from  the 
Union.  But  if  the  Federal  Constitution  be  a  Govern- 
ment owing  protection  to  individuals  and  entitled  to 
their  obedience,  whether  formed  by  the  People  of  the 
United  States  in  the  aggregate,  or  by  the  same  People 
as  citizens  of  the  respective  States,  no  State  authority 
can  dissolve  the  relations  subsisting  between  that  Gov- 
ernment and  the  individuals  subjected,  in  either  mode, 
to  its  authority.  From  the  very  nature  of  those  rela- 
tions, nothing  can  dissolve  them  but  revolution  ;  and 
there  can,  therefore,  be  no  such  thing  as  secession  with- 
out revolution.  The  Constitution  establishes  a  union 
between  the  People  of  the  several  States,  intended  to 
be  perpetual.  It  contains  numerous  provisions  founded 
on  that  supposition,  and  among  them,  one  for  its  own 


CONSTITUTIONAL  JURISPRUDENCE.  419 

amendment  ;  none  for  its  abandonment.  It  declares 
that  new  States  may  be  admitted  into  the  Union,  but 
not  that  old  States  may  withdraw  from  it.  The  Union 
is  not,  like  the  Confederation,  reducible  even  to  a  per- 
petual alliance  between  the  States,  much  less  to  a 
temporary  one ;  but  it  is  an  association  of  the  People 
of  the  several  States  in  one  mass,  under  a  permanent 
and  paramount  constitution  of  Government,  operating 
upon  them  as  individuals,  created  and  assented  to  by 
that  power  in  each  State  which  alone  had  authority  to 
abrogate  its  particular  Constitution,  or  so  far  to  modify 
it  as  to  surrender  powers  to  the  General  Government 
which  had  previously  been  delegated  to  the  State  Gov- 
ernments. No  State,  therefore,  can  undo  what  the 
People  have  done,  nor  absolve  its  citizens  from  their 
obligations  to  obey  the  laws  of  the  Union.  It  cannot 
divest  them  of  their  paramount  rights  as  citizens  of 
the  United  States ;  nor  can  the  members  of  the  State 
Legislatures  renounce  their  own  oaths  to  support  the 
Federal  Constitution  as  the  supreme  law  of  the  land ; 
neither  can  any  Convention  of  the  People  of  any  State, 
any  more  than  the  People  themselves,  collectively  or 
individually,  dispense  with  their  obligations,  or  dissolve 
their  allegiance  to  the  United  States,  unless  they  re- 
spectively possess  the  constitutional  power  of  settling 
for  themselves  the  construction  of  this  supreme  law  in 
all  doubtful  cases. 

The  practical  result  of  this  great  question  turns,  then, 
on  this  single  point.  It  has  not  as  yet  been  seriously 
pretended  that  each  individual  may  judge  for  himself, 
and  determine  in  his  own  case,  the  nature  and  extent 
of  his  obligations  as  a  member  of  the  Union.  But  if 
the  State  within  whose  local  jurisdiction  he  may  hap- 


420  LECTURES   ON 

pen  to  reside,  may  judge  for  him,  or  for  itself,  in  a  case 
of  an  alleged  violation  of  the  Federal  Constitution, 
and  finally  decide  and  execute  their  respective  decisions 
by  their  own  powers,  the  inference  follows  that,  being 
sovereign,  there  is  no  power  to  control  the  decision  of 
the  State,  and  its  own  judgment  on  its  own  contract 
must  be  conclusive.  But  this  doctrine  is  founded  in 
mere  theory  and  assumption  ;  and  is  refuted,  not  only 
by  plain  and  express  constitutional  provisions,  but  by 
the  very  nature  of  the  compact.  It  has  been  shown 
most  conclusively,  in  the  legislative  halls,^  as  well  as  in 
the  judicial  tribunals  of  the  Union,  that  the  Government 
of  the  United  States  possesses,  in  its  appropriate  de- 
partments, the  authority  of  final  decision  on  all  these 
questions  of  power,  both  by  necessary  implication  and 
express  grant. 

K  the  Constitution  be,  indeed,  a  Government  exist- 
ing over  all  the  States,  operating  upon  individuals,  and 
not  a  mere  treaty  of  alliance,  it  must,  upon  general 
principles,  possess  the  authority  in  question,  as  it  is,  in 
fact,  an  authority  naturally  belonging  to  all  Govern- 
ments. And  although  the  Constitution  establishes  a 
Government  of  limited  powers,  yet,  as  it  extends  equally 
over  all  the  States,  it  follows,  independently  of  the 
express  declaration  to  that  effect,  that  to  the  extent  of 
those  powers  it  must  necessarily  be  supreme  ;  while, 
firom  the  nature  of  the  powers  granted,  that  Govern- 
ment must  be  National  in  its  character,  as  well  as 
Federal  in  its  principles  of  organization.  The  infer- 
ence, then,  appears  to  be  irresistible,  that  the  Govern- 


1   Vide  the  speeches  of  Mr.  Webster  on  this  subject  in  the  Senate 
of  the  United  States. 


CONSTITUTIONAL  JURISPRUDENCE.  421 

ment,  thus  created  by  the  whole,  for  the  whole,  and 
extending  over  the  whole,  must  possess  an  authority 
superior  to  that  of  the  particular  Governments  of  any 
of  its  parts.  As  the  Government  of  the  Union;  it 
has  a  Legislative  power  of  its  own,  and  a  Judicial 
power  coextensive  with  the  Legislative  power.  To 
hold,  therefore,  that  these  are  not  supreme,  but  subor- 
dinate in  authority  to  the  Legislative  and  Judicial 
powers  of  a  State,  is  equally  repugnant  to  common 
sense,  to  sound  reasoning,  and  established  principles. 
The  Legislative,  Executive,  and  Judicial  departments 
of  the  Union  must  each  necessarily  judge  of  the  extent 
of  their  own  powers,  as  often  as  it  is  called  on  to  ex- 
ercise them ;  and  that  independently  of  State  control, 
or  they  could  not  act  at  all.  Without  any  express 
declaration,  therefore,  to  that  effect  in  the  Constitution, 
the  whole  question  is  necessarily  decided  by  those  pro- 
visions which  create  a  Legislative,  an  Executive,  and 
a  Judicial  power  ;  for  if  the  powers  exist  in  a  Govern- 
ment intended  for  the  Union,  the  inevitable  consequence 
is,  that  the  acts  of  the  Federal  Legislature  and  the 
decisions  of  the  Federal  Judiciary  must  be  binding 
over  the  whole  Union,  and  on  each  of  its  federative 
parts.  From  the  nature  of  the  case,  then,  and  as  an 
inference  wholly  unavoidable,  the  laws  of  Congress 
and  the  decisions  of  the  Federal  Courts  must  be  of 
higher  authority  than  those  of  the  States. 

But  the  Constitution,  as  we  have  already  seen,  has 
not  left  this  point  without  full  and  explicit  provision. 
For  if  the  express  grant  to  Congress  of  distinct  and 
substantive  power  to  make  all  laws  necessary  and 
proper  for  carrying  into  execution  all  other  powers 
vested  in  the  Government  of  the  United  States,  mean 
36 


422  LECTURES   ON 

anything,  it  means  that  Congress  may  determine  what 
is  necessary  and  proper  for  that  purpose ;  and  if  Con- 
gress may  judge  of  what  is  requisite  for  the  execution 
of  those  powers,  it  must  of  necessity  judge  of  their 
extent,  as  well  as  interpret  them.  With  regard  to  the 
Judicial  power,  the  Constitution  is  still  more  explicit 
and  emphatic.  If  any  case  arise  depending  on  the 
construction  of  the  Federal  Constitution,  the  Judicial 
power  of  the  Union,  we  have  seen,  extends  to  it,  in 
whatsoever  Court  it  may  originate.  Of  all  such  cases 
the  Supreme  Court  of  the  Union  has  appellate  juris- 
diction, and  its  judgments  are  final  and  conclusive. 
Nothing  more  effectual  could  have  been  done  for  sub- 
jecting all  constitutional  questions,  whenever  and  wher- 
ever they  may  arise,  to  the  ultimate  decision  of  the 
Supreme  Court  than  has  actually  been  accomplished 
by  this  salutary  provision  of  the  Constitution.  Con- 
gress was  saved  by  it  from  the  necessity  of  any  super- 
vision of  the  State  laws ;  and  while  the  whole  sphere 
of  State  legislation  was  thus  left  untouched,  an  ade- 
quate security  was  obtained  against  any  infringement 
of  the  constitutional  power  of  the  General  Government. 
It  is  clear,  then,  that  the  Constitution,  by  express 
grant,  as  well  as  by  necessary  implication,  has  rendered 
the  Government  of  the  United  States,  in  its  several 
departments,  the  judge  of  its  own  powers ;  and  that 
the  Supreme  Court,  in  order  to  preserve  uniformity  in 
the  interpretation  and  administration  of  the  laws  of 
the  Union,  must  be  the  ultimate  tribunal  to  decide  in 
the  last  resort  upon  them,  in  all  cases  of  a  constitu- 
tional nature  which  arise  in  a  suit  at  law  or  equity, 
either  in  the  Federal  or  State  Courts.  The  early  legis- 
lation of  Congress,  the  Judiciary  Act  of  1789,  and  the 


CONSTITUTIONAL  JURISPRUDENCE.  423 

whole  course  of  Judicial  decisions  since  that  period, 
concur  in  proving  that  there  is,  in  fact  and  in  truth,  a 
supreme  law,  and  a  final  interpreter  of  the  Constitution, 
created  by  the  Constitution  itself,  to  the  exclusion  of 
the  authority  and  jurisdiction  of  the  several  States. 
A  State,  therefore,  having  no  power  to  interpret  the 
Constitution  finally  for  itself,  cannot  secede  from  the 
Union  without  adopting  a  proceeding  essentially  revo- 
lutionary in  its  character ;  and  every  attempt  by  a  State 
to  abrogate  or  nullify  a  law  of  Congress  is  not  only  a 
usurpation  of  the  powers  of  the  National  Government, 
but  of  the  rights  of  the  other  States  ;  for  if  the  States, 
as  such,  have  equal  rights  in  matters  concerning  the 
whole,  then  for  one  State  to  set  up  its  judgment  against 
that  of  the  others,  and  to  insist  on  executing  its  own 
judgment  by  force,  is  a  manifest  usurpation  upon  the 
rights  of  all  the  rest ;  and  if  that  be  revolutionary 
which  arrests  the  Legislative,  Executive,  and  Judicial 
powers  of  the  General  Government  in  their  course, 
dispenses  with  existing  oaths,  dissolves  the  obligations 
of  allegiance  to  the  supreme  authority  of  the  Union, 
and  elevates  another  power  in  its  place,  then  are  nullifi- 
cation and  secession,  in  character  and  principle,  equally 
revolutionary.! 

'  In  a  letter  to  Mr.  Edward  Everett,  written  in  August,  1830,  and 
published  shortly  afterwards  in  the  North  American  Review,  Mr. 
Madison  expresses  his  opinion  on  this  subject  as  follows :  — 

"Between  these  different  constitutional  Governments,  —  the  one 
operating  on  all  the  States,  the  others  operating  separately  in  each, 
•with  the  aggregate  powers  of  Government  divided  between  them,  it 
could  not  escape  attention  that  controversies  would  arise  concerning 
the  boundaries  of  jurisdiction.  That  to  have  left  a  final  decision,  in 
such  cases,  to  each  of  the  States,  could  not  fail  to  make  the  Constitu- 
tion and  laws  of  the  United  States  difierent  in  different  States,  was 


424  LECTURES   ON 

I  have  now  completed  the  proposed  examination  of 
the  powers  vested  in  the  General  Government,  as  well 
as  of  its  fundamental  principles  and  organization.  And 
I  trust  it  has  abundantly  and  satisfactorily  appeared, 

1.  That  all  the  powers  requisite  to  secure  the  objects 
of  National  Union  are  vested  in  the  Federal  Govern- 
ment, while  those  only  which  are  not  essential  to  that 
object  are   reserved  to  the   States,  or  to  the    People. 

2.  That  this  National  Government,  though  limited  in 
its  powers  to  national  objects,  is  supreme  in  the  exercise 
of  those  powers,  whether  exclusive  or  concurrent,  ex- 
press or  implied ;  and  that,  whenever  any  of  these 
powers  come  into  collision  with  the  concurrent  or  in- 
dependent powers  of  the  States,  the  State  authority, 
which  is  subordinate,  must  yield  to  that  of  the  nation, 
which  is  supreme.     3.  That  this  Constitution,  the  laws 

obvious,  and  not  less  obvious  that  this  diversity  of  independent  de- 
cisions, must  altogether  distract  the  Government  of  the  Union,  and 
speedily  put  an  end  to  the  Union  itself.  To  have  made  the  decision 
under  the  authority  of  the  individual  States  coordinate  in  all  cases 
with  decisions  under  the  authority  of  the  United  States,  would  un- 
avoidably produce  collisions  incompatible  with  the  peace  of  society. 
To  have  referred  every  clashing  decision  under  the  two  authorities, 
for  a  final  decision,  to  the  States  as  parties  to  the  Constitution,  would 
be  attended  with  delays,  with  inconveniences,  and  expenses,  amount- 
ing to  a  prohibition  of  the  expedient.  To  have  trusted  to  negotiation 
for  adjustment  of  disputes  between  the  Government  of  the  United 
States  and  the  State  Governments,  as  between  independent  and 
separate  sovereignties,  would  have  lost  sight  altogether  of  a  Constitu- 
tion and  Government  of  the  Union,  and  opened  a  direct  road,  from  a 
failure  of  that  resort,  to  the  ultima  ratio  between  nations  wholly  inde- 
pendent of  and  alien  to  each  other.  Although  the  issue  of  negotiation 
might  sometimes  avoid  this  extremity,  how  often  would  it  happen, 
among  so  many  States,  that  an  unaccommodating  spirit  in  some  would 
render  that  resource  unavailing." 


CONSTITUTIONAL  JURISPRUDENCE.  425 

made  in  pursuance  of  it,  and  treaties  made  under  the 
authority  of  the  United  States,  whether  before  or  after 
the  adoption  of  the  Federal  Constitution,  are  the  SU' 
preme  law  of  the  land,  and  that  both  from  the  nature 
of  the  case,  and  the  provisions  of  the  Constitution,  the 
National  Legislature  must  judge  of  and  interpret  the 
supreme  law,  as  often  as  it  exercises  its  Legislative 
functions ;  that  the  Chief  Executive  Magistrate  of  the 
Union,  in  like  manner,  possesses  the  right  of  judging 
of  the  nature  and  extent  of  his  political  authority ;  and 
that,  in  all  cases  assuming  the  character  of  a  suit  in 
law  or  equity,  the  supreme  Judicial  tribunal  of  the 
Union  is  the  final  interpreter  of  the  Constitution. 
4.  That  no  State  authority  has  power  to  dissolve  the 
relations  between  the  Government  of  the  United  States 
and  the  People  of  the  several  States,  and  that,  conse- 
quently, no  State  has  a  right  to  secede  from  the  Union, 
except  under  such  circumstances  as  would  justify  a 
revolution  ;  and  that  an  attempt  by  any  State  to  abro- 
gate or  annul  an  Act  of  the  National  Legislature  is  a 
direct  usurpation  of  the  powers  of  the  General  Govern- 
ment, an  infringement  of  the  rights  of  all  the  other 
States,  and  a  violation  of  the  paramount  obligation  of 
its  members  to  support  and  obey  the  Federal  Consti- 
tution. 

In  this  exposition,  it  has,  I  trust,  been  rendered  also 
manifest,  that  unless  such  were  the  nature  and  princi- 
ples of  that  Constitution,  it  would  never  have  accom- 
plished, as  it  has  most  effectually  and  happily,  the  great 
ends  for  which  it  was  ordained,  nor  delivered  the  People 
of  this  country  from  the  evils  they  had  experienced 
under  the  Confederation.  I  trust,  too,  that,  in  review- 
ing this  system  of  Government  in  its  practical  operation 
36* 


426       LECTURES   ON  CONSTITUTIONAL  JURISPRUDENCE. 

and  results,  you  will  have  perceived  that  we  have  abun- 
dant cause  of  gratitude  to  Heaven,  not  only  for  defend- 
ing us  from  those  former  evils  which  must  necessarily 
have  increased  under  a  mere  alliance  between  the 
States,  but  for  bestowing  on  us,  in  their  stead,  those 
blessings  of  liberty,  law,  order,  peace,  and  prosperity, 
which,  under  Providence,  the  present  Constitution  has 
secured  to  the  present  generation  and  promises  to  pos- 
terity. And,  finally,  I  trust,  most  confidently,  that  you 
will  not  hesitate  to  join  with  me  in  earnest  and  devout 
prayer  to  the  Supreme  Ruler  of  the  Universe  that  our 
National  Government,  as  established  by  this  Constitu- 
tion, and  the  happiness  hitherto  enjoyed  under  it,  may 
stand  as  fast  and  endure  as  long  as  the  vast  continent 
over  which  it  seems  destined  to  extend  its  influence  or 
its  sway. 


Although  but  one  of  the  uses  contemplated  by  the  fore- 
going work  is  that  of  a  text-book  for  Colleges,  Academies,  and 
other  public  schools,  the  following  questions  are  appended  the 
better  to  accommodate  it  to  that  purpose. 

QUESTIONS  ON  THE  FEDERAL  CONSTITUTION. 

INTRODUCTORY. 

1.  By  -what  body,  and  by  what  authority,  was  the  Constitution  of 
the  United  States  framed  ? 

2.  For  what  objects  is  it  declared  to  be  established  ? 

3.  To  whose  assent  was  it  submitted,  and  by  whom  was  it  ratified  ? 

4.  Upon  what  fundamental  principle  is  it  grounded  ? 

5.  Among  what  Departments  are  the  powers  of  government .  it 
grants  distributed  ? 

6.  Upon  what  principle  is  the  distribution  made  ? 

7.  To  what  extent  is  the  principle  of  representation  applied,  and  in 
what  manner  modified  or  restricted  ? 

8.  Under  what  modifications  does  the  Constitution  adopt  or  recog- 
nize the  English  Common  Law  ? 

9.  Whence  are  its  principles  immediately  derived  by  the  Constitu- 
tion, and  in  what  cases  are  they  applicable  under  it  ? 

10.  What  natural  rights  are  secured  by  the  Constitution  to  the 
citizens  of  the  United  States  ? 

11.  To  what  extent  are  those  rights  surrendered,  and  for  what 
objects  ? 

12.  What  are  the  civil  rights  and  privileges  secured  by  the  Con- 
stitution to  the  People  and  the  States  in  lieu  of  the  security  and 
advantages  afforded  by  the  Federal  Government  ? 

13.  What  character  does  the  Constitution  impart  to  the  States, 
and  what  relation  does  it  establish  between  them  and  the  Federal 
Government  ? 

14.  What  does  it  declare  to  be  the  supreme  law  of  the  land? 

15.  AVhat  are  the  principal  points  of  view  under  which  the  Federal 
Constitution  is  to  be  considered  ? 


428  QUESTIONS   ON 

I.  WITH  REGARD  TO  THE  ORGANIZATION  OF  THE  GOVERNMENT. 

1.  What  is  the  first  general  point  of  view  in  which  the  Constitution 
is  to  be  considered  ? 

2.  Among  what  separate  Departments  are  the  powers  of  the  Fed- 
eral Government  distributed  ? 

1st.  The  Legislative  Power. 

1 .  In  whom  is  the  Legislative  Power  vested  ? 

2.  Of  what  separate  bodies  does  Congress  consist  ? 

3.  Upon  what  principle  or  rule  of  representation,  is  each  of  them 
respectively  founded  ? 

4.  At  what  times,  and  place,  and  how  often  is  Congress  required  to 
assemble  ? 

5.  When  and  how  may  it  adjourn  ? 

6.  For  how  long  a  time  can  one  house  adjourn  without  the  other  ? 

7.  In  cases  of  disagreement  between  them,  by  whom  may  they  be 
adjourned  ? 

8.  When  must  Congress  of  necessity  adjourn. 

9.  What  peculiar  benefit  is  secured  by  the  Constitution  in  regard 
to  the  assembling  and  adjournment  of  Congress  V 

10.  Of  whom  are  the  members  of  the  House  of  representatives 
composed  ? 

11.  What  qualifications  are  required  in  the  electors  of  members  of 
the  House  of  Representatives  ? 

12.  What  are  the  qualifications  requisite  in  its  members  ? 

13.  In  what  manner,  and  by  what  rule  are  Representatives  appor- 
tioned among  the  States  ? 

1 4.  What  is  the  provision  in  case  the  States  neglect  or  refuse  to 
pass  laws  for  holding  elections  of  Representatives  ? 

15.  What  powers  are  separately  vested  in  the  House  of  Represen- 
tatives ? 

16.  How  is  the  Senate  organized  ? 

1 7.  Whom  do  the  Senators  represent  ? 

18.  Do  they  vote,  by  States  or  individually  ? 

19.  Into  how  many  classes  are  the  Senators  divided,  in  what  man- 
ner, and  for  what  purpose  ? 

20.  What  separate  powers  are  vested  in  the  Senate  ? 

21.  In  what  manner  is  the  Court  of  Impeachment  organized  ? 


THE  FEDERAL   CONSTITUTION.  429 

22.  Of  whom  does  it  consist  besides  the  Senators  ? 

23.  What  is  required  of  the  members  of  the  Court  before  proceed- 
ing to  the  trial  of  an  Impeachment  V 

24.  Who  presides  when  the  President  of  the  United  States  is  to  be 
tried  ? 

25.  The  concurrence  of  what  proportion  of  the  members  of  the 
Court  is  requisite  to  a  conviction  upon  an  impeachment  ? 

2d.  The  Executive  Power. 

1.  In  whom  is  the  Executive  Power  vested  by  the  Constitution  ? 

2.  What  are  the  qualifications  required  in  the  President  ? 

3.  By  whom,  and  in  what  manner,  is  he  chosen  ? 

4.  By  whom,  and  in  what  manner,  are  the  Electors  chosen  ? 

5.  What  qualifications  are  required  in  the  Electors  ? 

6.  When  and  where  are  they  directed  to  meet  ? 

7.  How  are  they  to  be  organized,  and  proceed  to  vote  ? 

8.  How  are  vacancies  in  their  number  to  be  supplied  ? 

9.  What  duties  are  they  to  perform  after  giving  their  votes  ? 

10.  When,  where,  and  by  whom  is  the  general  result  to  be  declared  V 

11.  What  proportion  of  Electoral  votes  is  necessarj'  to  a  choice  ? 

12.  How  and  when  is  the  election  to  be  determined  when  no  per- 
son has  such  majority  ? 

13.  In  what  manner  are  the  votes  of  the  Representatives  taken  in 
that  case  ? 

14.  What   number  of  Representatives,  from  what    proportion  of 
States,  constitute  a  quorum  for  the  purpose  of  such  election  ? 

15.  In  cases  where  no  choice  is  made  before  the  time  to  which  the 
action  of  the  House  is  limited,  who  is  to  act  as  President  ? 

16.  How  is  the  Vice-President  chosen  ? 

17.  How  is  he  chosen  in  case  of  not  receiving  a  majority  of  the 
Electoral  votes  ? 

18.  What  proportion   of   Senators   constitute  a   quorum   for   the 
purpose  ? 

19.  What  qualifications  are  required  in  the  Vice-President  ? 

20.  What  were  the  reasons  for  creating  the  oflSce  ? 

21.  For  what  term  are  the  President  and  Vice-President  elected  ? 

22.  What  is  the  effect  of  the  law  declaring  the  day  on  which  that 
term  shall  commence  V 

23.  In  what  cases,  and  for  what  period  is  the  Vice-President  to 
execute  the  office  of  President  ? 


430  QUESTIONS   ON 

24.  Enumerate  the  powers  and  duties  of  the  President. 

25.  In  what  cases,  and  in  what  form,  is  the  quaUfied  negative  of  the 
President  upon  the  Acts  and  Resolutions  of  Congress  to  be  exercised  ? 

26.  What  is  its  effect  when  interposed  ? 

27.  What  proportion  of  each  House  is  requisite  to  pass  such  Act  or 
Resolution,  notwithstanding  the  objections  of  the  President  V 

28.  What  was  the  primary  inducement  for  conferring  this  power 
upon  the  President  ? 

29.  What  the  secondary  f 

30.  Whence  the  propriety  of  investing  him  with  his  military  powers  ? 

31.  Why  is  he  invested  with  the  power  of  granting  reprieves  and 
pardons  ? 

32.  Under  whose  authority  and  direction  are  international  affairs 
and  negotiations  with  foreign  powers  conducted  ? 

33.  What  number  of  the  Senators  is  necessary  to  concur  in  advis- 
ing and  consenting  to  Treaties  ? 

34.  What  number  is  required  to  advise  and  consent  to  nominations 
to  office  made  by  the  President  ? 

35.  What  duties  are  required  of  him  in  relation  to  Congress  ? 

36.  What  powers  and  duties  has  he  in  relation  to  foreign  ambassa- 
dors and  other  public  ministers  ? 

37.  What  in  reference  to  officers  of  the  United  States? 

38.  What  provision  is  made  for  executing  the  office  of  President, 
in  cases  of  vacancies  in  the  offices  of  both  President  and  Vice- 
President  ? 

Sd.  The  Judicial  Power. 

1.  How  is  the  Judicial  Power  of  the  United  States  vested  by  the 
Constitution  ? 

2.  How  are  the  Judges  appointed  ? 

3.  Upon  what  tenure  do  they  hold  their  offices  ? 

4.  What  provision  does  the  Constitution  make  for  their  support  ? 

5.  What  precautions  does  it  adopt  to  secure  their  responsibility  ? 

6.  To  what  cases  does  the  Judicial  Power  of  the  United  States 
extend  ? 

7.  Whence  the  propriety  of  vesting  this  jurisdiction  in  the  Courts 
of  the  United  States  ? 

8.  What  was  the  design  of  the  Constitution  in  separating  the 
Judicial  Power  from  the  other  Departments,  and  of  the  precautions 
for  maintaining  its  independence  ? 


THE  FEDERAL  CONSTITUTION.  431 

9.  Among  -what    Courts   has   the   Federal  jurisdiction   been    dis- 
tributed ? 

10.  By  what  power  was  the  Supreme  Court  created,  and  how  is 
it  organized  ? 

11.  From  what  authority  is  its  organization  derived  ? 

12.  In  what  cases  has  it  exclusive  jurisdiction  ? 

13.  In  what  cases  has  it  original,  but  not  exclusive  jurisdiction  ? 

14.  In  what  cases  has  it  appellate  jurisdiction  ? 

15.  What  authority  has  it  over  the  subordinate  Courts  of  the  United 
States  ? 

16.  What  subordinate  Courts  have  been  established  by  law  ? 

1 7.  In  what  manner  are  the  Circuit  Courts  of  the  United  States 
organized  ? 

18.  In  what  cases  have  they  original  and  exclusive  jurisdiction  ? 

19.  In  what  cases  is  their  jurisdiction  concurrent,  and  with  what 
other  Courts  ? 

20.  In  what  cases  have  they  appellate  jurisdiction  ? 

21.  How  far,  and  in  what  sense,  are  they  Inferior  Courts  ? 

22.  From  what  power  is  the  organization  and  authority  of  the 
District  Courts  derived  ? 

23.  How  are  they  organized  ? 

24.  In  what  cases  is  their  jurisdiction  original  and  exclusive  ? 

25.  In  what  cases  is  it  concurrent,  and  with  what  Courts  ? 

26.  What  power  has  a  District  Judge  in  cases  where  parties  have 
not  reasonable  time  to  apply  to  the  Circuit  Court  ? 

27.  By  what  authority  were  the  Courts  of  the  Territories 
OF  THE  United  States  created  ? 

28.  How  are  they  organized  in  the  respective  Territories  ? 

29.  What  jurisdiction  is  vested  in  them  respectively  ? 

30.  In  what  cases  arising  under  the  laws  of  the  United  States  have 
the  State  Courts  and  Magistrates  jurisdiction,  vested  in  thenx  by 
Congress  ? 

II.   POWERS   vested   in   THE   FEDERAL   GOVERNMENT,   AND  RE- 
STRAINTS  IMPOSED    UPON   THE    STATES. 

1 .  To  what  classes  may  the  powers  conferred  on  the  Federal  Gov- 
ernment be  reduced  ? 

2.  Enumerate  the  powers  relating  to. 


432  QUESTIONS   ON 

1st.  Security  from  foreign  danger. 

3.  In  whom  is  The  power  of  declaring  war  vested  by  the  Constitu- 
tion ? 

4.  Is  this  power  exclusive  or  concurrent  ? 

5.  In  whom  is  the  power  of  agreeing  to  truces  and  treaties  of  peace 
vested  by  the  Constitution  ? 

6.  What  powers  derived  from,  involved  in,  or  subservient  to  that 
of  declaring  war,  are  vested  in  Congress  ? 

7.  Why  is  the  power  of  raising  money  by  taxation  or  loans  included 
in  this  class  ? 

8.  How  is  this  power  limited  ? 

9.  What  taxes  are  included  under  this  general  term  ? 

1 0.  What  are  direct  taxes  f 

11.  How  do  they  operate  and  take  effect  ? 

12.  How  are  direct  taxes  to  be  levied  ? 

13.  What  is  affected  by  indirect  taxes  f 

14.  How  are  they  to  be  levied  ? 

2d.  Powers  for  regulating  intercourse  with  foreign  nations. 

1.  Enumerate  the  powers  vested  in  the  Federal  Government  for 
regulating  foreign  intercourse. 

2.  In  whom  are  the  powers  to  make  treaties,  and  to  send  and  receive 
ambassadors  and  other  public  ministers,  vested  ? 

3.  What  is  the  nature  of  a  treaty  ? 

4.  When  are  treaties  to  be  regarded  by  the  Courts  of  Justice  as 
equivalent  to  laws  ? 

5.  What  is  the  effect  of  a  treaty  upon  the  Acts  of  Congress  ? 

6.  From  what  other  power  does  that  of  sending  and  receiving 
ambassadors,  and  other  public  ministers,  and  consuls  result  as  a 
necessary  incident  ? 

7.  What  other  power  does  the  latter  include  by  implication  ? 

8.  Why  is  the  power  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations,  vested 
in  Congress  ? 

9.  Define  Piracy. 

10.  What  does  Felony,  when  committed  on  the  high  seas,  in  effect 
amount  to  ? 

11.  Is  this  power  exclusively  vested  in  Congress  V 


THE  FEDERAL   CONSTITUTION.  433 

12.  What  other  offences  besides  piracy  fall  more  immediately  under 
the  cognizance  of  the  law  of  nations  ? 

13.  Why  was  the  power  to  regulate  foreign  commerce  submitted  to 
the  Federal  Government  ? 

14.  What  is  its  nature  and  extent  V 

15.  What  else  does  it  comprehend  ? 

16.  What  was  temporarily  excepted  from  its  exercise  ? 

1 7.  When  did  that  exception  cease  to  operate  ? 

2d.  Powers  for  maintaining  harmony  among  the  States. 

1.  Besides  the  particular  restraints  upon  the  States,  and  certain 
powers  vested  in  the  Judiciary,  enumerate  the  remaining  powers 
comprehended  under  this  head. 

2.  How  far  does  the  power  to  regulate  commerce  among  the  States 
extend  ? 

3.  What  particular  objects  does  it  comprehend  ? 

4.  What  interpretation  has  been  given  to  the  power  with  respect  to 
commerce  with  the  Indian  tribes  ? 

5.  In  what  character  and  relation  are  they  regarded  by  the  Consti- 
tution and  laws  of  the  United  States  ? 

6.  With  what  is  the  power  to  establish  Post-offices  and  Post-roads 
necessarily  connected  ? 

7.  Mention  some  of  the  benefits  derived  from  it. 

8.  How  far  is  it  exclusive  f 

9.  What  implied  powers  have  been  exercised  as  incidental  to  it  ? 

10.  What  rule  has  been  laid  down  in  relation  to  the  exercise  of 
incidental  and  implied  powers  ? 

1 1 .  What  is  the  extent  or  limitations  of  the  powers  to  coin  money, 
to  regulate  its  value,  and  that  of  foreign  coins  f 

12.  W^hat  is  the  extent  or  limitation  of  the  power  fo^  the  standard 
of  weights  and  measures  f 

13.  To  what  other  powers  is  that  of  providing  for  the  punishment  of 
counterfeiting  the  public  securities,  and  current  coin  of  the  United 
States,  incidental  ? 

14.  How  far  is  it  exclusive  f 

15.  What  is  the  nature  and  advantage  of  the  power  to  prescribe  by 
general  laws  the  manner  in  which  the  public  ads,  records,  and  Judicial 
proceedings  of  each  Slate  shall  be  proved,  and  the  effect  they  shall  have 
in  other  States  ? 

37 


434  QUESTIONS   ON 

16.  What  faith  and  credit  are  those  of  each  State  entitled  to  in 
the  Courts  of  the  United  States  ? 

17.  What  effect  have  they  as  evidence  in  different  cases  ? 

18.  Under  what  circumstances  are  they  admitted  as  prima  facie 
evidence  ? 

19.  Under  what  circumstances,  as  conclusive  evidence  ? 

20.  What  is  meant  by  prima  facie  evidence  ? 

21.  What  is  the  nature  and  extent  of  the  power  to  establish  a  uni- 
form- system  of  naturalization  ? 

22.  To  what  rights  are  the  citizens  of  each  State  entitled  in  all  the 
others  ? 

23.  Upon  what  ground  is  the  power  of  naturalization  held  to  be 
exclusive  in  the  Federal  Government  ? 

24.  Who  were  entitled  to  the  privileges  of  citizens  of  the  United 
States,  at  the  time  of  the  Declaration  of  Independence  ? 

25.  What  difference  is  there  in  the  rules  upon  this  subject  in  the 
United  States  and  Great  Britain  ? 

26.  What  is  the  difference  between  the  two  Governments  as  to  the 
doctrine  of  allegiance  ? 

27.  What  is  the  term  applied  to  persons  born  out  of  the  United 
States  ? 

28.  What  exceptions  are  they  in  the  application  of  the  term  ? 

29.  What  is  the  existing  law  of  the  United  States  relative  to  natu- 
ralization ? 

30.  What  inducements  have  aliens  coming  to  reside  in  this  country 
to  become  citizens  ? 

31.  What  reasons  were  they  for  investing  Congress  with  the  power 
to  establish  uniform  laws  on  the  subject  of  bankruptcies  f 

32.  Define  the  term  "  bankruptcy." 

33.  How  far  is  this  power  exclusive  f 

Ath.  Miscellaneous  objects  of  general  utility. 

1.  What  is  the  object  of  the  power  to  promote  the  progress  of  science 
and  the  useful  arts  f 

2.  What  construction  is  given  to  the  Constitution  to  effect  that 
object  ? 

3.  What  reasons  were  they  for  vesting  in  Congress  exclusive  legis- 
lation over  the  seat  of  Government,  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings  of  the  United  States  ? 

4.  Where  was  the  seat  of  the  Federal  Government  established  ? 


THE  FEDERAL  CONSTITUTION.  435 

5.  What  extent  of  territory  was  granted  for  that  purpose,  and  by 
•which  of  the  States  ? 

6.  In  what  body  i3  the  power  of  legislation  over  that  District 
vested  ? 

7.  What  cities  are  comprehended  within  it  ? 

8.  How  are  those  cities  organized  and  governed  ? 

9.  Upon  what  ground  is  the  power  to  declare  the  punishment  of 
treason  against  the  United  States  vested  in  Congress  ? 

1 0.  In  what  does  treason  against  the  United  States  consist  ? 

11.  What  testimony  is  requisite  to  a  conviction  of  treason  ? 

12.  What  restriction  is  there  upon  the  power  of  Congress  with 
respect  to  the  punishment  of  treason  ? 

13.  What  power  has  Congress  as  to  admitting  new  States  into  the 
Union,  and  how  is  it  restricted  ? 

14.  What  new  States  have  been  admitted  since  the  adoption  of 
the  Constitution  ? 

15.  Of  what  territory  were  they  severally  composed  ? 

16.  From  what  considerations  was  the  power  to  dispose  of  and  make 
all  needful  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States  vested  in  Congress  ? 

1 7.  How  is  this  power  restricted  ? 

18.  What  do  the  United  States  guarantee  to  the  several  States  ? 

19.  What  power  or  duties  result  from  this  provision  ? 

20.  In  what  cases  may  the  power  be  exercised  ? 

21.  What  power  has  Congress  with  respect  to  amendments  to  the 
Constitution  f 

22.  In  what  modes  may  this  power  be  exercised? 

23.  What  are  the  restrictions  upon  this  power? 

24.  What  is  the  general  character  of  the  amendments  proposed  by 
some  of  the  States  as  conditions  of  their  accession  to  the  Constitution  ? 

25.  Which  of  them  only  may  be  regarded  as  necessary  ? 

26.  What  is  the  effect  of  these  amendments,  or  of  any  of  them  ? 

27.  What  were  their  chief  objects  ? 

5th.  Restrictions  npon  the  States. 

1.  How  may  the  restrictions  upon  the  powers  of  the  several  States  be 
distinguished  by  their  character. 

2.  Specify  those  which  are  absolute,  and  the  grounds  and  policy  of 
each  in  succession. 


486    QUESTIONS  ON  THE  FEDERAL  CONSTITUTION. 

3.  In  what  manner  are  the  other  restrictions  on  the  State  powers 
qualified  ? 

4.  Enumerate  them,  with  the  grounds  on  which  they  respectively 
rest. 

Qth.  Provisions  for  giving  efficacy  to  the  Federal  powers. 

1.  What  provisions  are  contained  in  the  Constitution,  for  giving 
efficacy  to  the  Federal  powers  ? 

2.  Whence  the  necessity  of  vesting  Congress  with  authority  to 
make  all  laws  necessary  and  proper  for  carrying  those  powers  into  exe- 
cution f 

5.  What  construction  has  been  given  to  the  terms  "necessary  and 
proper  ?  " 

4.  Whence  the  necessity  or  propriety  of  requiring  the  Legislative, 
Executive,  and  Judicial  officers,  both  of  the  United  States,  and  of 
the  several  States  to  be  bound  by  oath  to  support  the  Constitution  of  the 
United  States  ? 

5.  What  other  provisions  already  considered  may  be  included 
among  those  already  specified  upon  this  subject  ? 

6.  WTience  the  necessity  and  effect  of  declaring  and  specifying 
what  shall  be  considered  the  Supreme  Law  of  the  land,  and  enumerat- 
ing the  persons  bound  thereby  ? 

7.  Why  was  the  ratification  of  the  Constitution  by  the  People  of 
the  several  States  required  ? 

8.  In  what  manner  was  the  Constitution  adopted  ? 

9.  What  number  of  States  was  required  for  carrying  it  into  opera- 
tion, and  by  how  many  was  it  ratified  previously  to  its  going  into 
effect  ? 

10.  What  were  the  reasons  for  requiring  it  so  to  be  ratified,  adopted, 
and  carried  into  effect  ? 


APPENDIX. 


A,  p.  11. 

DECLARATION  OF  INDEPENDENCE. 

In  Congress  J  July  4,  1776. 

When,  in  the  course  of  human  events,  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  which  have  con- 
nected them  with  another,  and  to  assume,  among  the  powers  of 
the  earth,  the  separate  and  equal  station  to  which  the  laws  of 
nature  and  of  nature^  God  entitle  them,  a  decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare  the 
causes  which  impel  them  to  the  separation. 

"We  hold  these  truths  to  be  self-evident :  that  all  men  are 
created  equal ;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights ;  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness  ;  that  to  secure  these  rights,  gov- 
ernments are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed ;  that  whenever  any  form  of 
government  becomes  destructive  of  these  ends,  it  is  the  right  of 
the  people  to  alter  or  to  abolish  it,  and  to  institute  a  new  govern- 
ment, laying  its  foundation  on  such  principles,  and  organizing 
its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to 
effect  their  safety  and  happiness.  Prudence,  indeed,  will  dic- 
tate that  governments  long  established  should  not  be  changed 
37* 


488  APPENDIX. 

for  light  and  transient  causes ;  and,  accordingly,  all  experience 
hath  shown  that  mankind  are  more  disposed  to  suJSer,  while 
evils  are  sufferable,  than  to  right  themselves  by  abolishing  the 
forms  to  which  they  are  accustomed.  But  when  a  long  train  of 
abuses  and  usurpations,  pursuing  invariably  the  same  object, 
evinces  a  design  to  reduce  them  under  absolute  despotism,  it  is 
their  right,  it  is  their  duty,  to  throw  off  such  government,  and 
to  provide  new  guards  for  their  future  security.  Such  has  been 
the  patient  sufferance  of  these  colonies,  and  such  is  now  the 
necessity  which  constrains  them  to  alter  their  former  systems  of 
government.  The  history  of  the  present  King  of  Great  Britain 
is  a  history  of  repeated  injuries  and  usurpations,  all  having  in 
direct  object  the  establishment  of  an  absolute  tyranny  over 
these  States.  To  prove  this,  let  facts  be  submitted  to  a  candid 
world. 

He  has  refused  his  assent  to  laws  the  most  wholesome  and 
necessary  for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate 
and  pressing  importance,  unless  suspended  in  their  operation  tiU 
his  assent  should  be  obtained ;  and  when  so  suspended,  he  has 
utterly  neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of 
large  districts  of  people,  unless  those  people  would  relinquish 
the  right  of  representation  in  the  Legislature ;  a  right  inestima- 
ble to  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual, 
uncomfortable,  and  distant  from  the  depository  of  their  public 
records,  for  the  sole  purpose  of  fatiguing  them  into  compliance 
with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for  oppos- 
ing, with  manly  firmness,  his  invasions  on  the  rights  of  the 
people. 

He  has  refused  for  a  long  time,  after  such  dissolutions,  to 
cause  others  to  be  elected ;  whereby  the  legislative  powers, 
incapable  of  annihilation,  have  returned  to  the  people  at  large 


APPENDIX.  439 

for  their  exercise ;  the  state  remaining,  in  the  mean  time,  ex- 
posed to  all  the  dangers  of  invasion  from  without,  and  convul- 
sions within. 

He  has  endeavored  to  prevent  the  population  of  these  States ; 
for  that  purpose  obstructing  the  laws  for  naturalization  of  for- 
eigners ;  refusing  to  pass  others  to  encourage  their  migrations 
hither,  and  raising  the  conditions  of  new  appropriations  of 
lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing 
his  assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the 
tenure  of  their  offices,  and  the  amount  and  payment  of  their 
salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither 
swarms  of  officers,  to  harass  our  people  and  eat  out  their 
substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies, 
without  the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of,  and 
soperior  to,  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction 
foreign  to  our  Constitution,  and  unacknowledged  by  our  laws  ; 
giving  his  assent  to  their  acts  of  pretended  legislation  : 

For  quartering  large  bodies  of  armed  troops  among  us  : 

For  protecting  them,  by  a  mock  trial,  from  punishment  for 
any  murders  which  they  should  commit  on  the  inhabitants  of 
these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world : 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by 
jury: 

For  transporting  us  beyond  seas  to  be  tried  for  pretended 
offences : 

For  abolishing  the  free  system  of  English  laws  in  a  neighbor- 
ing province,  establishing  therein  an  arbitrary  government,  and 


440  APPENDIX. 

enlarging  its  boundaries,  so  as  to  render  it  at  once  an  example 
and  fit  instrument  for  introducing  the  same  absolute  rule  into 
these  colonies  : 

For  taking  away  our  charters,  abolishing  our  most  valuable 
laws,  and  altering  fundamentally  the  forms  of  our  governments  : 

For  suspending  our  own  legislatures,  and  declaring  them- 
selves invested  with  power  to  legislate  for  us  in  all  cases  what- 
soever. 

He  has  abdicated  government  here,  by  declaring  us  out  of 
his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burned  our 
towns,  and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign 
mercenaries  to  complete  the  works  of  death,  desolation,  and 
tyranny,  already  begun  with  circumstances  of  cruelty  and  per- 
fidy scarcely  paralleled  in  the  most  barbarous  ages,  and  totally 
unworthy  the  head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the 
high  seas,  to  bear  arms  against  their  country,  to  become  the 
executioners  of  their  friends  and  brethren,  or  to  fall  themselves 
by  their  hands. 

He  has  excited  domestic  insurrections  among  us,  and  has 
endeavored  to  bring  on  the  inhabitants  of  our  frontiers  the 
merciless  Indian  savages,  whose  known  rule  of  warfare  is  an 
undistinguished  destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  petitioned  for 
redress  in  the  most  humble  terms :  our  repeated  petitions  have 
been  answered  only  by  repeated  injury.  A  prince  whose  char- 
acter is  thus  marked  by  every  act  which  may  define  a  tyrant,  is 
unfit  to  be  the  ruler  of  a  free  people. 

Nor  have  we  been  wanting  in  attentions  to  our  British 
brethren.  "We  have  warned  them,  from  time  to  time,  of  attempts 
by  their  Legislature  to  extend  an  unwarrantable  jurisdiction 
over  us.  We  have  reminded  them  of  the  circumstances  of  our 
emigration  and  settlement  here.     We  have  appealed  to  their 


APPENDIX. 


441 


native  justice  and  magnanimity,  and  we  have  conjured  them, 
by  the  ties  of  our  common  kindred,  to  disavow  these  usurpa- 
tions, which  would  inevitably  interrupt  our  connections  and 
correspondence.  They,  too,  have  been  deaf  to  the  voice  of  jus- 
tice and  of  consanguinity.  We  must,  therefore,  acquiesce  in  the 
necessity  which  denounces  our  separation,  and  hold  them,  as 
we  hold  the  rest  of  mankind,  enemies  in  war,  in  peace  friends. 

We,  therefore,  the  representatives  of  the  United  States  of 
America,  in  General  Congress  assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  name,  and  by  authority  of  the  good  people  of  these 
colonies,  solemnly  publish  and  declare,  that  these  United  Col- 
onies are,  and  of  right  ought  to  be.  Free  and  Independent 
States  ;  that  they  are  absolved  from  all  allegiance  to  the 
British  crown,  and  that  all  political  connection  between  them 
and  the  State  of  Great  Britain  is,  and  ought  to  be,  totally  dis- 
solved ;  and  that,  as  free  and  independent  States,  they  have  full 
power  to  levy  war,  conclude  peace,  contract  alliances,  establish 
commerce,  and  to  do  all  other  acts  and  things  which  independent 
States  may  of  right  do.  And  for  the  support  of  this  declaration, 
with  a  firm  reliance  on  the  protection  of  Divine  Providence,  we 
mutually  pledge  to  each  other  our  lives,  our  fortunes,  and  our 

sacred  honor. 

JOHN  HANCOCK. 

(  Josiah  Bartlett, 

New  Hampshire.      •<  William  Whipple, 

(  Matthew  Thornton. 

Samuel  Adams, 

-II r         1-      i^    -r>  John  Adams, 

Massachusetts  Bay.^  ^^^^^^  ^^^^;  p^.^^^ 

Elbridge  Gerry. 

Stephen  Hopkins, 
l  William  EUery. 

Roger  Sherman, 
J  Samuel  Huntington, 
j"  William  Williams, 
[  Oliver  Wolcott. 


Ehode  Island,  &c. 


Connecticut. 


442 


APPENDIX. 


New  York. 


New  Jersey. 


Pennsylvania. 


Delaware. 


Maryland. 


Virginia. 


North  Carolina. 


South  Carolina. 


Georgia. 


William  Floyd, 

Philip  Livingston, 

Francis  Lewis, 

Lewis  Morris. 

Richard  Stockton, 

John  Witherspoon, 

Francis  Hopkinson, 

John  Hart, 

Abraham  Clark. 

Robert  Morris, 

Benjamin  Rush, 

Benjamin  Fraukhn, 

John  Morton, 

George  Clymer, 

James  Smith, 

George  Taylor, 

James  Wilson, 

George  Ross. 

Cassar  Rodney, 

George  Read, 

Thomas  M'Kean. 

Samuel  Chase, 

William  Paca, 

Thomas  Stone, 

Charles  Carroll,  of  Carrollton. 

George  Wythe, 

Richard  Henry  Lee, 

Thomas  Jefferson, 

Benjamin  Harrison, 

Thomas  Nelson,  Jun., 

Francis  Lightfoot  Lee, 

Carter  Braxton. 

William  Hooper, 

Joseph  Hewes, 

John  Penn. 

Edward  Rutledge, 

Thomas  Heyward,  Jun., 

Thomas  Lynch,  Jun., 

Arthur  Middleton. 

Button  Gwinnett, 

Lyman  Hall, 

George  Walton. 


APPENDIX.  443 

B,  p.  13. 

ARTICLES   OF   CONFEDERATION   AND   PERPETUAL  UNION 

Between  the  States  of  New  Hampshire,  Massachusetts  Bay,  Rhode 
Island  and  Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia. 

In  Congress,  July  8,  1778. 

Article  I.  The  style  of  this  Confederacy  shall  be,  "  The 
United  States  of  America." 

Art.  II.  Each  State  retains  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled. 

Art.  III.  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other  against  all  force 
offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence  whatever. 

Art.  IV.  §  1.  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
States  in  this  Union,  the  free  inhabitants  of  each  of  these  States, 
paupers,  vagabonds,  and  fugitives  from  justice  excepted,  shall 
be  entitled  to  all  privileges  and  immunities  of  free  citizens  in 
the  several  States  ;  and  the  people  of  each  State  shall  have  free 
ingress  and  regress  to  and  from  any  other  State,  and  shall  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the 
same  duties,  impositions,  and  restrictions  as  the  inhabitants 
thereof  respectively;  provided  that  such  restrictions  shall  not 
extend  so  far  as  to  prevent  the  removal  of  property  imported 
into  any  State  to  any  other  State  of  which  the  owner  is  an 
inhabitant ;  provided,  also,  that  no  imposition,  duties,  or  restric- 
tion shall  be  laid  by  any  State  on  the  property  of  the  United 
States,  or  either  of  them. 


444  APPENDIX. 

§  2.  If  any  person  guilty  of  or  charged  with  treason,  felony, 
or  other  high  misdemeanor  in  any  State,  shall  flee  from  justice, 
and  be  found  in  any  of  the  United  States,  he  shall,  upon  the 
demand  of  the  Governor  or  Executive  power  of  the  State  from 
which  he  fled,  be  delivered  up  and  removed  to  the  State  having 
jurisdiction  of  his  offence. 

§  3.  Full  faith  and  credit  shall  be  given  in  each  of  these 
States  to  the  records,  acts,  and  Judicial  proceedings  of  the 
courts  and  magistrates  of  every  other  State. 

Art.Y.  §  1.  For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be  an- 
nually appointed,  in  such  manner  as  the  Legislature  of  each 
State  shall  direct,  to  meet  in  Congress  on  the  first  Monday  in 
November  in  every  year,  with  a  power  reserved  to  each  State 
to  recall  its  delegates,  or  any  of  them,  at  any  time  within  the 
year,  and  to  send  others  in  their  stead  for  the  remainder  of  the 
year. 

§  2.  No  State  shall  be  represented  in  Congress  by  less  than 
two,  nor  by  more  than  seven  members  ;  and  no  person  shall  be 
capable  of  being  a  delegate  for  more  than  three  years,  in  any 
term  of  six  years ;  nor  shall  any  person,  being  a  delegate,  be 
capable  of  holding  any  office  under  the  United  States,  for  which 
he,  or  another  for  his  benefit,  receives  any  salary,  fees,  or 
emolument  of  any  kind. 

§  3.  Each  State  shall  maintain  its  own  delegates  in  a  meeting 
of  the  States,  and  while  they  act  as  members  of  the  committee 
of  these  States. 

§  4.  In  determining  questions  in  the  United  States  in  Con- 
gress assembled,  each  State  shall  have  one  vote. 

§  5.  Freedom  of  speech  and  debate  in  Congress  shall  not  be 
impeached  or  questioned  in  any  Court  or  place  out  of  Congress, 
and  the  members  of  Congress  shall  be  protected  in  their  persons 
from  arrests  and  imprisonments  during  the  time  of  their  going 
to  and  from,  and  attendance  on  Congress,  except  for  treason^ 
felony,  or  breach  of  the  peace. 


APPENDIX.  445 

Art.  VI.  §  1.  No  State,  without  the  consent  of  the  United 
States  in  Congress  assembled,  shall  send  any  embassy  to  or 
receive  any  embassy  from,  or  enter  into  any  conference,  agree- 
ment, alliance,  or  treaty  with  any  king,  prince,  or  State,  nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  or  any  of  them,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  State  ;  nor  shall  the  United  States  in  Congress  assem- 
bled, or  any  of  them,  grant  any  title  of  nobility. 

§  2.  No  two  or  more  States  shall  enter  into  any  treaty,  con- 
federation, or  alliance  whatever  between  them,  without  the 
consent  of  the  United  States  in  Congress  assembled,  specifying 
accurately  the  purposes  for  which  the  same  is  to  be  entered  into, 
and  how  long  it  shall  continue. 

§  3.  No  State  shall  lay  any  imposts  or  duties  which  may 
interfere  with  any  stipulations  in  treaties,  entered  into  by  the 
United  States  in  Congress  assembled,  with  any  king,  prince,  or 
State,  in  pursuance  of  any  treaties  already  proposed  by  Con- 
gress to  the  courts  of  France  and  Spain. 

§  4.  No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by 
any  State,  except  such  number  only  as  shall  be  deemed  neces- 
sary by  the  United  States,  in  Congress  assembled,  for  the  de- 
fence of  such  State,  or  its  trade  ;  nor  shall  any  body  of  forces 
be  kept  up  by  any  State  in  time  of  peace,  except  such  number 
only  as,  in  the  judgment  of  the  United  States  in  Congress 
assembled,  shall  be  deemed  requisite  to  garrison  the  forts  neces- 
sary for  the  defence  of  such  State ;  but  every  State  shall  always 
keep  up  a  well-regulated  and  disciplined  militia,  sufficiently 
armed  and  accoutred,  and  shall  provide,  and  constantly  have 
ready  for  use,  in  public  stores,  a  due  number  of  fieldpieces  and 
tents,  and  a  proper  quantity  of  arms,  ammunition,  and  camp 
equipage. 

§  5.  No  State  shall  engage  in  any  war,  without  the  consent 
of  the  United  States  in  Congress  assembled,  unless  such  State 
be  actually  invaded  by  enemies,  or  shall  have  received  certain 
38 


446  APPENDIX. 

advice  of  a  resolution  being  formed  bj  some  nation  of  Indians 
to  invade  such  State,  and  the  danger  is  so  imminent  as  not  to 
admit  of  delay  till  the  United  States  in  Congress  assembled  can 
be  consulted ;  nor  shall  any  State  grant  commissions  to  any 
ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal,  ex- 
cept it  be  after  a  declaration  of  war  by  the  United  States  in 
Congress  assembled;  and  then  only  against  the  kingdom  or 
State,  and  the  subjects  thereof,  against  which  war  has  been  so 
declared,  and  under  such  regulations  as  shall  be  established  by 
the  United  States  in  Congress  assembled,  unless  such  State  be 
infested  by  pirates ;  in  which  case  vessels  of  war  may  be  fitted 
out  for  that  occasion,  and  kept  so  long  as  the  danger  shall  con- 
tinue, or  until  the  United  States  in  Congress  assembled  shall 
determine  otherwise. 

Art.  VII.  When  land-forces  are  raised  by  any  State  for  the 
common  defence,  all  officers  of  or  under  the  rank  of  colonel 
shall  be  appointed  by  the  Legislature  of  each  State  respectively 
by  whom  such  forces  shall  be  raised,  or  in  such  manner  as  such 
State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the 
State  which  first  made  the  appointment. 

Art.  VIII.  All  charges  of  war,  and  all  other  expenses  that 
shall  be  incurred  for  the  common  defence  or  general  welfare, 
and  allowed  by  the  United  States  in  Congress  assembled,  shall 
be  defrayed  out  of  a  common  treasury,  which  shall  be  supplied 
by  the  several  States,  in  proportion  to  the  value  of  all  land 
within  each  State,  granted  to  or  surveyed  for  any  person,  as 
such  land,  and  the  buildings  and  improvements  thereon,  shall 
be  estimated,  according  to  such  mode  as  the  United  States  in 
Congress  assembled  shall,  from  time  to  time,  direct  and  appoint. 
The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by 
the  authority  and  direction  of  the  Legislatures  of  the  several 
States  within  the  time  agreed  upon  by  the  United  States  in 
Congress  assembled. 

Art.  IX.  §  1.  The  United  States  in  Congress  assembled  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on 


APPENDIX.  447 

peace  and  war,  except  in  the  cases  mentioned  in  the  sixth 
article ;  of  sending  and  receiving  ambassadors ;  entering  into 
treaties  and  alliances,  provided  that  no  treaty  of  commerce 
shall  be  made  whereby  the  Legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  are  subjected  to,  or 
from  prohibiting  the  exportation  or  importation  of  any  species 
of  goods  or  commodities  whatsoever;  of  establishing  rules  for 
deciding  in  all  cases  what  captures  on  land  or  water  shall  be 
legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces 
in  the  service  of  the  United  States  shall  be  divided  or  appro- 
priated ;  of  granting  letters  of  marque  and  reprisal  in  times  of 
peace ;  appointing  courts  for  the  trial  of  piracies  and  felonies 
committed  on  the  high  seas ;  and  establishing  courts  for  receiv- 
ing and  determining  finally  appeals  in  all  cases  of  capture : 
provided  that  no  member  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

§  2.  The  United  States  in  Congress  assembled  shall  also  be 
the  last  resort  on  appeal  in  all  disputes  and  differences  now 
subsisting,  or  that  hereafter  may  arise  between  two  or  more 
States  concerning  boundary,  jurisdiction,  or  any  other  cause 
whatever ;  which  authority  shall  always  be  exercised  in  the 
manner  following  :  Whenever  the  Legislative  or  Executive 
authority,  or  lawful  agent  of  any  State  in  controversy  with 
another,  shall  present  a  petition  to  Congress,  stating  the  matter 
in  question,  and  praying  for  a  hearing,  notice  thereof  shall  be 
given  by  order  of  Congress  to  the  Legislative  or  Executive 
authority  of  the  other  State  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint  by  joint  consent  commissioners 
or  judges  to  constitute  a  Court  for  hearing  and  determining  the 
matter  in  question ;  but  if  they  cannot  agree.  Congress  shall 
name  three  persons  out  of  each  of  the  United  States,  and  from 
the  list  of  such  persons  each  party  shall  alternately  strike  out 
one,  the  petitioners  beginning,  until  the  number  shall  be  reduced 


448  APPENDIX. 

to  thirteen ;  and  from  that  number  not  less  than  seven,  nor  more 
than  nine  names,  as  Congress  shall  direct,  shall,  in  the  pres- 
ence of  Congress,  be  drawn  out  by  lot ;  and  the  persons  whose 
names  shall  be  so  drawn,  or  any  five  of  them,  shall  be  commis- 
sioners or  judges,  to  hear  and  finally  determine  the  controversy, 
so  always  as  that  a  major  part  of  the  judges  who  shall  hear  the 
cause  shall  agree  in  the  determination ;  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  showing  reasons 
which  Congress  shall  judge  sujfficient,  or,  being  present,  shall 
refuse  to  strike,  the  Congress  shall  proceed  to  nominate  three 
persons  out  of  each  State,  and  the  secretary  of  Congress  shall 
strike  in  behalf  of  such  party  absent  or  refusing;  and  the  judg- 
ment and  sentence  of  the  court,  to  be  appointed  in  the  manner 
before  prescribed,  shall  be  final  and  conclusive ;  and  if  any  of 
the  parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  to  appear  or  defend  their  claim  or  cause,  the  court  shall, 
nevertheless,  proceed  to  pronounce  sentence  or  judgment,  which 
shall  in  like  manner  be  final  and  decisive ;  the  judgment  or 
sentence  and  other  proceedings  being  in  either  case  transmitted 
to  Congress,  and  lodged  among  the  Acts  of  Congress,  for  the 
security  of  the  parties  concerned :  provided  that  every  com- 
missioner, before  he  sits  in  judgment,  shall  take  an  oath,  to  be 
administered  by  one  of  the  judges  of  the  Supreme  or  Superior 
Court  of  the  State  where  the  cause  shall  be  tried,  "  well  and 
truly  to  hear  and  determine  the  matter  in  question,  according  to 
the  best  of  his  judgment,  without  favor,  affection,  or  hope  of 
reward."  Provided,  also,  that  no  State  shall  be  deprived  of 
territory  for  the  benefit  of  the  United  States. 

§  3.  All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  States,  whose 
jurisdictions,  as  they  may  respect  such  lands,  and  the  States 
which  passed  such  grants,  are  adjusted,  the  said  grants,  or  either 
of  them,  being,  at  the  same  time,  claimed  to  have  originated 
antecedent  to  such  settlement  of  jurisdiction,  shall,  on  the  pe- 
tition of  either  pai-ty  to  the  Congress  of  the  United  States,  be 


APPENDIX.  449 

finally  determined,  as  near  as  may  be,  in  the  same  manner  as  is 
before  prescribed  for  deciding  disputes  respecting  territorial 
jurisdiction  between  different  States. 

§  4,  The  United  States  in  Congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regulating  the 
alloy  and  value  of  coin  struck  by  their  own  authority,  or  by 
that  of  the  respective  States  ;  fixing  the  standard  of  weights 
and  measures  throughout  the  United  States  ;  regulating  the 
trade  and  managing  all  affairs  with  the  Indians,  not  members 
of  any  of  the  States ;  provided  that  the  Legislative  right  of 
any  State  within  its  own  limits  be  not  infringed  or  violated  ; 
establishing  and  regulating  post-offices  from  one  State  to  an- 
other, throughout  all  the  United  States,  and  exacting  such 
postage  on  the  papers  passing  through  the  same  as  may  be 
requisite  to  defray  the  expenses  of  the  said  office ;  appointing 
all  officers  of  the  land-forces  in  the  service  of  the  United  States, 
excepting  regimental  officers  ;  appointing  all  the  officers  of  the 
naval  forces,  and  commissioning  all  officers  whatever  in  the 
service  of  the  United  States  ;  making  rules  for  the  government 
and  regulation  of  the  said  land  and  naval  forces,  and  directing 
their  operations. 

§  5.  The  United  States  in  Congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of  Con- 
gress, to  be  denominated  A  Committee  of  the  States,  and  to 
consist  of  one  delegate  from  each  State  ;  and  to  appoint  such 
other  committees  and  civil  officers  as  may  be  necessary  for 
managing  the  general  affairs  of  the  United  States  under  their 
direction ;  to  appoint  one  of  their  number  to  preside,  provided 
that  no  person  be  allowed  to  serve  in  the  office  of  President 
more  than  one  year  in  any  term  of  three  years ;  to  ascertain 
the  necessary  sums  of  money  to  be  raised  for  the  service  of  the 
United  States,  and  to  appropriate  and  apply  the  same  for  de- 
fraying the  public  expenses  ;  to  borrow  money  or  emit  bills  on 
the  credit  of  the  United  States,  transmitting  every  half  year  to 
the  respective  States  an  account  of  the  sums  of  money  so  bor- 
38* 


450  APPENDIX. 

rowed  or  emitted ;  to  build  and  equip  a  navy ;  to  agree  upon 
the  number  of  land-forces,  and  to  make  requisitions  from  each 
State  for  its  quota,  in  proportion  to  the  number  of  white  in- 
habitants in  such  State,  which  requisition  shall  be  binding ;  and 
thereupon  the  Legislature  of  each  State  shall  appoint  the  regi- 
mental officers,  raise  the  men,  and  clothe,  arm,  and  equip  them 
in  a  soldierlike  manner,  at  the  expense  of  the  United  States ; 
and  the  officers  and  men  so  clothed,  armed,  and  equipped,  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on 
by  the  United  States  in  Congress  assembled  ;  but  if  the  United 
States  in  Congress  assembled  shall,  on  consideration  of  circum- 
stances, judge  proper  that  any  State  should  not  raise  men,  or 
should  raise  a  smaller  number  than  its  quota,  and  that  any  other 
State  should  raise  a  greater  number  of  men  than  the  quota 
thereof,  such  extra  number  shall  be  raised,  officered,  clothed, 
armed,  and  equipped  in  the  same  manner  as  the  quota  of  such 
State,  unless  the  Legislature  of  such  State  shall  judge  that  such 
extra  number  cannot  be  safely  spared  out  of  the  same,  in  which 
case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many 
of  such  extra  number  as  they  judge  can  be  safely  spared ;  and 
the  officers  and  men  so  clothed,  armed,  and  equipped,  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on  by 
the  United  States  in  Congress  assembled. 

§  6.  The  United  States  in  Congress  assembled  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  reprisal  in 
time  of  peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin 
money,  nor  regulate  the. value  thereof,  nor  ascertain  the  sums 
and  expenses  necessary  for  the  defence  and  welfare  of  the 
United  States,  or  any  of  them,  nor  emit  bills,  nor  borrow 
money  on  the  credit  of  the  United  States,  nor  appropriate 
money,  nor  agree  upon  the  number  of  vessels  of  war  to  be 
built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander-in-chief  of  the  army  or  navy, 
unless  nine  States  assent  to  the  same ;  nor  shall  a  question  on 
any  other  point,  except  for  adjourning  from  day  to  day,  be 


APPENDIX.  451 

determined,  unless  by  the  votes  of  a  majority  of  the  United 
States  in  Congress  assembled. 

§  7.  The  Congress  of  the  United  States  shall  have  power  to 
adjourn  to  any  time  within  the  year,  and  to  any  place  within 
the  United  States,  so  that  no  period  of  adjournment  be  for  a 
longer  duration  than  the  space  of  six  months,  and  shall  publish 
the  journal  of  their  proceedings  monthly,  except  such  parts 
thereof  relating  to  treaties,  alliances,  or  military  operations,  as 
in  their  judgment  require  secrecy ;  and  the  yeas  and  nays  of 
the  delegates  of  each  State  on  any  question  shall  be  entered  on 
the  journal,  when  it  is  desired  by  any  delegate ;  and  the  dele- 
gates of  a  State,  or  any  of  them,  at  his  or  their  request,  shall 
be  furnished  with  a  transcript  of  the  said  journal,  except  such 
parts  as  are  above  excepted,  to  lay  before  the  Legislatures  of 
the  several  States. 

Art.  X.  The  Committee  of  the  States,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such 
of  the  powers  of  Congress  as  the  United  States  in  Congress 
assembled,  by  the  consent  of  nine  States,  shall  from  time  to 
time  think  expedient  to  vest  them  with  ;  provided  that  no 
power  be  delegated  to  the  said  committee,  for  the  exercise  of 
which,  by  the  Articles  of  Confederation,  the  voice  of  nine 
States,  in  the  Congress  of  the  United  States  assembled,  is 
requisite. 

Art.  XI.  Canada,  acceding  to  this  Confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into, 
and  entitled  to  all  the  advantages  of  this  Union  ;  but  no  other 
colony  shall  be  admitted  into  the  same,  unless  such  admission 
be  agreed  to  by  nine  States. 

Art.  XII.  All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted  by,  or  under  the  authority  of  Congress,  before 
the  assembling  of  the  United  States,  in  pursuance  of  the  pres- 
ent confederation,  shall  be  deemed  and  considered  as  a  charge 
against  the  United  States,  for  payment  and  satisfaction  whereof 
the  said  United  States  and  the  public  faith  are  hereby  solemnly 
pledged. 


462  APPENDIX. 

Art.  XIII.  Every  State  shall  abide  by  the  determinations  of 
the  United  States  in  Congress  assembled,  on  all  questions  which 
by  this  confederation  are  submitted  to  them.  And  the  articles 
of  this  confederation  shall  be  inviolably  observed  by  every 
State,  and  the  Union  shall  be  perpetual ;  nor  shall  any  altera- 
tion at  any  time  hereafter  be  made  in  any  of  them,  unless  such 
alteration  be  agreed  to  in  a  Congress  of  the  United  States,  and 
be  afterward  confirmed  by  the  Legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the 
world  to  incline  the  hearts  of  the  Legislatures  we  respectively 
represent  in  Congress  to  approve  of,  and  to  authorize  us  to 
ratify  the  said  Articles  of  Confederation  and  perpetual  Union, 
Know  ye,  that  we,  the  undersigned  delegates,  by  virtue  of  the 
power  and  authority  to  us  given  for  that  purpose,  do,  by  these 
presents,  in  the  name  and  in  behalf  of  our  respective  constitu- 
ents, fully  and  entirely  ratify  and  confirm  each  and  every  of  the 
said  Articles  of  Confederation  and  perpetual  Union,  and  all 
and  singular  the  matters  and  things  therein  contained.  And 
we  do  further  solemnly  plight  and  engage  the  faith  of  our 
respective  constituents,  that  they  shall  abide  by  the  determina- 
tions of  the  United  States  in  Congress  assembled,  on  all  ques- 
tions which  by  the  said  Confederation  are  submitted  to  them  ; 
and  that  the  articles  thereof  shall  be  inviolably  observed  by 
the  States  we  respectively  represent,  and  that  the  Union  shall 
be  perpetual.  In  witness  whereof,  we  have  hereunto  set  our 
hands  in  Congress. 
Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the  9th 

day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  third 

year  of  the  Independence  of  America. 

■VT       XT         I,'  ( Josiah  Bartlett, 

New  Hampshire.      •<  t  u    -nr    ^       lu    t 

^  i  John  Wentworth,  Jun. 

John  Hancock, 


Massachusetts  Bay." 


Samuel  Adams, 
Elb  ridge  Gerry, 
Francis  Dana, 
James  Lovell, 
Samuel  Holten. 


APPENDIX. 


453 


Rhode  Island,  «&;c. 
Connecticut. 

New  York. 
New  Jersey. 

Pennsylvania. 

Delaware. 
Maryland. 

Virginia. 
North  Carolina. 
South  Carolina. 
Georgia. 


(  William  EUery, 
■}  Henry  Marchant, 
(  John  Collins. 

Roger  Sherman, 

Samuel  Huntington, 

Oliver  Wolcott, 

Titus  Hosmer, 

Andrew  Adams. 

James  Duane, 

Francis  Lewis, 

William  Duer, 

Gouverneur  Morris. 
'  John  Witherspoon, 

Nathaniel  Scudder. 

Robert  Morris, 

Daniel  Roberdeau, 

Jonathan  Bayard  Smith, 

William  Clingan, 

Joseph  Reed. 

{Thomas  M'Kean, 
John  Dickinson, 
Nicholas  Vandyke. 
'John  Hanson, 
Daniel  Carrol. 
'  Richard  Henry  Lee, 
John  Banister, 
-   Thomas  Adams, 
John  Harvey, 
Francis  Lightfoot  Lee. 

{John  Penn, 
Cornelius  Harnett, 
John  Williams. 
Henry  Laurens, 
William  Henry  Drayton, 
John  Matthews, 
Richard  Hutson, 
Thomas  Hey  ward,  Jun. 
I '  John  Walton, 
-.|  Edward  Telfair, 
(  Edward  Longworthy. 


454  APPENDIX. 

C,  p.  21. 

CONSTITUTION  OF  THE  UNITED   STATES. 

The  Constitution  framed  for  the  United  States  of  America,  by  a  Con- 
vention of  Deputies  from  the  States  of  New  Hampshire,  Massachusetts, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  at  a 
Session  begun  May  25,  and  ended  September  17,  1787. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  Union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America. 

ARTICLE  I. 

SECTION  I. 

All  Legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

SECTION   II. 

1.  The  House  of  Representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year,  by  the  people  of  the  several 
States ;  and  the  electors  in  each  State  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the 
State  Legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  age  of  twenty-five  years,  and  been  seven  years 
a  citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  ex- 


APPENDIX.  455 

eluding  Indians  not  taxed,  three  fifths  of  all  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United  States  ;  and, 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
they  shall  by  law  direct.  The  number  of  Representatives  shall 
not  exceed  one  for  every  thirty  thousand  ;  but  each  State  shall 
have  at  least  one  Representative ;  and,  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled  to 
choose  three ;  Massachusetts,  eight ;  Rhode  Island  and  Provi- 
dence Plantations,  one ;  Connecticut,  five ;  New  York,  six ;  New 
Jersey,  four  ;  Pennsylvania,  eight ;  Delaware,  one  ;  Maryland, 
six ;  Virginia,  ten ;  North  Carolina,  five ;  South  Carolina,  five  ; 
and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any 
State,  the  executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  speaker 
and  other  officers,  and  shall  have  the  sole  power  of  impeach- 
ment. 

SECTION  III. 

1.  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature  thereof, 
for  six  years  ;  and  each  Senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled,  in  consequence 
of  the  first  election,  they  shall  be  divided,  as  equally  as  may 
be,  into  three  classes.  The  seats  of  the  Senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year ;  of 
the  second  class,  at  the  expiration  of  the  fourth  year ;  and  of 
the  third  class,  at  the  expiration  of  the  sixth  year ;  so  that  one 
third  may  be  chosen  every  second  year.  And  if  vacancies 
happen,  by  resignation  or  otherwise,  during  the  recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of  the  Legisla- 
ture, which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  attained 


456  APPENDIX. 

to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  tlie 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  vote  unless  they  be 
equally  divided. 

5.  The  Senate  shall  choose  their  other  oflGlcers,  and  also  a 
President  pro-tempore  in  the  absence  of  the  Vice-President,  or 
when  he  shall  exercise  the  office  of  President  of  the  United 
States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose,  they  shall  be  on  oath  or 
affirmation.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside ;  and  no  person  shall  be  con- 
victed without  the  concurrence  of  two  thirds  of  the  members 
present. 

7.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold 
and  enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States.  But  the  party  convicted  shall,  nevertheless,  be  liable 
and  subject  to  indictment,  trial,  judgment,  and  punishment, 
according  to  law. 

SECTION   IV. 

1.  The  times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each  State 
by  the  Legislature  thereof;  but  the  Congress  may,  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year ; 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall,  by  law,  appoint  a  different  day. 

SECTION   V. 

1.  Each  House  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members ;  and  a  majority  of  each 


APPENDIX.  457 

shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to  com- 
pel the  attendance  of  absent  members,  in  such  manner  and 
under  such  penalties  as  each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  proceedings ; 
punish  its  members  for  disorderly  behaviour  ;  and,  with  the  con- 
currence of  two  thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts  as 
may  in  their  judgment  require  secrecy  ;  and  the  yeas  and 
nays  of  the  members  of  either  House  on  any  question  shall, 
at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the 
journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  Houses  shall 
be  sitting. 

SECTION  VI. 

1.  The  Senators  and  Representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall,  in  all  cases 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged 
from  arrest  during  their  attendance  at  the  session  of  their  re- 
spective Houses,  and  in  going  to  and  returning  from  the  same  : 
for  any  speech  or  debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  place. 

2.  No  Senator  or  Representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office,  under  the 
authority  of  the  United  States,  which  shall  have  been  created, 
or  the  emoluments  whereof  shall  have  been  increased,  during 
such  time ;  and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  house  during  his  continuance 
in  office. 

SECTION  VII. 

1.  All  bills  for  raising  revenue  shall  originate  in  the  House 
39 


458  APPENDIX. 

of  Representatives  ;  but  the   Senate  may  propose  or  concur 
with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate  shall,  before  it  become  a  law,  be  pre- 
sented to  the  President  of  the  United  States.  If  he  approve 
it,  he  shall  sign  it ;  but  if  not,  he  shall  return  it,  with  his  objec- 
tions, to  that  House  in  which  it  shall  have  originated,  who  shall 
enter  the  objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.  If,  after  such  reconsideration,  two  thirds  of  that 
House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with 
the  objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered ;  and,  if  approved  by  two  thirds  of  that  House,  it 
shall  become  a  law.  But  in  all  such  cases  the  votes  of  both 
Houses  shall  be  determined  by  yeas  and  nays  ;  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be  entered 
on  the  journal  of  each  House  respectively.  If  any  bill  shall 
not  be  returned  by  the  President  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return ;  in  which 
case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary, 
(except  on  a  question  of  adjournment,)  shall  be  presented  to 
the  President  of  the  United  States,  and,  before  the  same  shall 
take  effect,  shall  be  approved  by  hira,  or  being  disapproved  by 
him,  shall  be  re-passed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules  and  limitations  prescribed 
in  the  case  of  a  bill. 

SECTION   VIII. 

The  Congress  shall  have  power,  * 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises  to 
pay  the  debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States  ;  but  all  duties,  imposts,  and  ex- 
cises shall  be  uniform  throughout  the  United  States : 


APPENDIX.  459 

2.  To  borrow  money  on  the  credit  of  the  United  States : 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes  : 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures  : 

6.  To  provide  for  the  punishment  of  counterfeiting  the  secu- 
rities and  current  coin  of  the  United  States : 

7.  To  establish  post-offices  and  post-roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  inventors,  the  exclu- 
sive right  to  their  respective  writings  and  discoveries  : 

■  9.  To  constitute  tribunals  inferior  to  the  Supreme  Court : 

10.  To  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offences  against  the  law  of  nations : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water : 

12.  To  raise  and  support  armies;  but  no  appropriation  of 
money  for  that  use  shall  be  for  a  longer  term  than  two  years : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces  : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  invasions : 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
States  respectively  the  appointment  of  the  officers,  and  thei 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress. 

17.  To  exercise  exclusive  legislation,  in  all  cases  whatsoever, 
over  such  District  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  States,  and  the  acceptance  of  Congress, 
become  the  seat  of  the  government  of  the  United  States ;  and 


460  APPENDIX. 

to  exercise  like  authority  over  all  places  purchased  by  the 
consent  of  the  Legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards,  and 
other  needful  buildings  ;  and, 

18.  To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

SECTION   IX. 

1.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

6.  No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  State  over  those  of  an- 
other ;  nor  shall  vessels  bound  to,  or  from  one  State,  be  obliged 
to  enter,  clear,  or  pay  duties  in  another. 

7.  No  money  shall  be  drawn  from  the  treasury  but  in  conse- 
quence of  appropriations  made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United  States  ; 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress,  accept  of  any  pres- 


APPENDIX.  461 

ent  emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  State. 

SECTION  X. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration ;  grant  letters  of  marque  and  reprisal  ;  coin  money  ; 
emit  bills  of  credit ;  make  any  thing  but  gold  and  silver  coin  a 
tender  in  payment  of  debts ;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts  ;  or  grant 
any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws  ;  and 
the  net  produce  of  all  duties  and  imposts,  laid  by  any  State  on 
imports  or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress. 

3.  No  State  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  State,  or 
with  a  foreign  power,  or  engage  in  war,  unless  actually  invaded 
or  in  such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE    n. 

SECTION  I. 

1.  The  Executive  power  shall  be  vested  in  a  President  of 
the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and  together  with  the  Vice-President, 
chosen  for  the  same  term,  be  elected  as  follows  : 

2.  Each  State  shall  appoint,  in  such  manner  as  the  Legisla- 
ture thereof  may  direct,  a  number  of  Electors,  equal  to  the 
whole  number  of  Senators  and  Representatives  to  which  the 
State  m^y  be  entitled  in  the  Congress ;  but  no  Senator  or  Rep- 
resentative, or  person  holding  any  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 

39* 


462  APPENDIX. 

3.  The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not 
be  an  inhabitant  of  the  same  State  with  themselves.  And  they 
shall  make  a  list  of  all  the  persons  voted  for,  and  of  the  number 
of  votes  for  each ;  which  list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  President 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number  of 
votes  shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed  ;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said 
House  shall  in  like  manner  choose  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote  ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of 
the  Electors  shall  be  the  Vice-President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them  by  ballot,  the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the 
Electors,  and  the  day  on  which  they  shall  give  their  votes ; 
which  day  shall  be  the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural-bom  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  Constitu- 
tion, shall  be  eligible  to  the  oflSce  of  President ;  neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  attained 
to  the  age  of  thirty-five  years,  and  been  fourteen  years  a  resi- 
dent within  the  United  States. 


APPENDIX.  463 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice- 
President  ;  and  the  Congress  may  by  law  pi'ovide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  Presi- 
dent and  Vice-President,  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed,  or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  ser- 
vices a  compensation,  which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation:  — 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  Pi-esident  of  the  United  States;  and  will,  to  the 
best  of  my  ability,  preserve,  protect,  and  defend  the  Constitu- 
tion of  the  United  States." 

SECTION   U. 

1.  The  President  shall  be  Commander-in-Chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the  United  States; 
he  may  require  the  opinion,  in  writing,  of  the  principal  officer 
in  each  of  the  Executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  offices,  and  he  shall  have  power 
to  grant  reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two  thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and  by  and 
with  the  advice  and  consent  of  the  Senate,  shall  appoint  am- 
bassadors, other  public  ministers,  and  consuls,  judges  of  the 
Supreme  Court,  and  all   other  officers  of   the  United  States 


464  APPENDIX. 

whose  appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law ;  but  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior  officers  as  they  think 
proper  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  their  next 
session. 

SECTION  III. 

He  shall,  from  time  to  time,  give  to  the  Congress  information 
of  the  State  of  the  Union,  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  judge  necessary  and  expedient ; 
he  may,  on  extraordinary  occasions,  convene  both  Houses,  or 
either  of  them,  and,  in  case  of  disagreement  between  them  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper ;  he  shall  receive  ambassadors 
and  other  public  ministers  ;  he  shall  take  care  that  the  laws  be 
faithfully  executed,  and  shall  commission  all  the  officers  of  the 
United  States. 

SECTION   IV. 

The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

ARTICLE  III. 

SECTION   I. 

The  Judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may,  from  time  to  time,  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behaviour,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office. 


APPENDIX.  465 

SECTION   II. 

1.  The  Judicial  power  shall  extend  to  aU  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority  ;  to  all  cases  affecting  ambassadors  ;  other  public 
ministers,  and  consuls ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  which  the  United  States  shall 
be  a  party ;  to  controversies  between  two  or  more  States ;  be- 
tween a  State  and  citizens  of  another  State  ;  between  citizens 
of  different  States ;  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States  ;  and  between  a  State,  or 
the  citizens  thereof  and  foreign  States,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all  the 
other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions, and  under  such  regulations,  as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury,  and  such  trial  shall  be  held  in  the  State  where 
the  said  crimes  shall  have  been  committed  ;  but  when  not 
committed  within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed. 

SECTIOX   III. 

1.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giv- 
ing them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punishment 
of  treason ;  but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person  attainted. 


466  APPENDIX. 

ARTICLE  IV. 

SECTION   I. 

Full  faith  and  ci-edit  shall  be  given,  in  each  State,  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof. 

SECTION   II. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and  be  found  in  another 
State,  shall,  on  demand  of  the  Executive  authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

3.  No  person,  held  to  service  or  labor  in  one  State  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or 
labor ;  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due. 

SECTION   HI. 

1.  New  States  may  be  admitted  by  the  Congress  into  this 
Union  ;  but  no  new  State  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  State;  nor  any  State  be  formed  by 
the  junction  of  two  or  more  States,  or  parts  of  States,  without 
the  consent  of  the  Legislatures  of  the  States  concerned,  as  well 
as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States ;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  prejudice  any 
claims  of  the  United  States,  or  of  any  particular  State. 


APPENDIX.  467 

SECTION    IV. 

The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion ;  and  on  application  of  the  Legisla- 
ture, or  of  the  Executive,  (when  the  Legislature  cannot  be 
convened,)  against  domestic  violence. 

ARTICLE  V. 
The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  Legislatures  of  two  thirds  of  the 
several  States,  shall  call  a  convention  for  proposing  amend- 
ments; which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  Constitution,  when  ratified  by  the 
Legislatures  of  three  fourths  of  the  several  States,  or  by  con- 
ventions in  three  fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress :  Provided 
that  no  amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  shall  in  any  manner  affect 
the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article ;  and  that  no  State,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

1.  All  debts  contracted,  and  engagements  entered  into  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution  as  under  the  Confed- 
eration. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything  in  the 
Constitution  or  laws  of  any  State  to  the  contrary  notwithstand- 
ing. 


468  APPENDIX. 

3.  The  Senators  and  Representatives  before  mentioned,  and 
the  members  of  the  several  State  Legislatures,  and  all  Execu- 
tive and  Judicial  officers,  both  of  the  United  States  and  of  the 
several  States,  shall  be  bound,  by  oath  or  affirmation,  to  support 
this  Constitution ;  but  no  religious  test  shall  ever  be  required 
as  a  qualification  to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  Vn. 

The  ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same. 

Done  in  Convention  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven,  and 
of  the  independence  of  the  United  States  of  America  the 
twelfth.  In  witness  whereof,  we  have  hereunto  subscribed 
our  names. 

GEORGE  WASHINGTON,  President, 

and  Deputy  from  Virginia. 

New  Hampshire,  ■[i^.'^"  Langdon, 

'^  (  Nicholas  Gilman. 

Massachusetts        -I  ^^^^haniel  Gorham, 
(  lluius  King. 

/-,  ,.     ^  (  William  Samuel  Johnson, 

Connecticut.  ^  t>  e, 

\  Roger  Sherman. 

New  York.  Alexander  Hamilton. 

r  William  Livingston, 

New  Jersey  \  ^^^'^  Brearley, 

'   •'*  j  William  Paterson, 

Jonathan  Dayton. 
Benjamin  Franklin, 
Thomas  Mifflin, 
Robert  Morris, 

T,  ,       .  I  George  Clymer, 

Fennsylvania.       <  rn  tti-.     • 

I  1  nomas  i^itzsimmons, 

Jared  Ingersol, 

James  Wilson, 

Gouverneur  Morris. 


APPENDIX. 


469 


Delaware. 

Maryland. 
Virginia. 
North  Carolina. 

South  Carolina. 

Georgia. 
Attest, 


George  Read, 

Gunning  Bedford,  Jun., 
■I  John  Dickinson, 

Richard  Bassett, 

Jacob  Broom, 
r  James  M'Henry, 
■}  Daniel  of  St.  Thomas  Jenifer, 
(  Daniel  Carroll. 
j  John  Blair, 
(  James  Madison,  Jun. 
(  William  Blount, 
^  Richard  Dobbs  Spaight, 
(  Hugh  Williamson. 

(John  Rutledge, 
Charles  Cotesworth  Pinckney, 
Charles  Pinckney, 
Pierce  Butler. 
William  Few, 
Abraham  Baldwin. 
William  Jackson,  Secretary. 


AMENDMENTS. 

The  following  Articles  in  addition  to,  and  amendment  of,  the  Constitu- 
tion of  the  United  States,  having  been  ratified  by  the  Legislatures  of 
nine  States,  are  equally  obligatory  toith  the  Constitution  itself. 

I.  Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof,  or  abridging 
the  freedom  of  speech  or  of  the  press ;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  Government 
for  a  redress  of  grievances. 

II.  A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 

m.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner ;  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

IV.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
40 


470  APPENDIX. 

seizures,  shall  not  be  violated ;  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

V.  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  grand-jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service,  in  time  of  war,  or 
public  danger ;  nor  shall  any  person  be  subject,  for  the  same 
offence,  to  be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall 
be  compelled,  in  any  criminal  case,  to  be  witness  against  him- 
self ;  nor  be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law  ;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 

VI.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury,  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed ; 
which  district  shall  have  been  previously  ascertained  bylaw; 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him  ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor  ;  and  to 
have  the  assistance  of  counsel  for  his  defence. 

VII.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved ;  and  no  fact  tried  by  a  juiy  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States  than  according  to 
the  rules  of  the  common  law. 

VIII.  Excessive  bail  shall  not  be  required ;  nor  excessive 
fines  imposed ;  nor  cruel  and  unusual  punishments  inflicted. 

IX.  The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

X.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 


APPENDIX.  471 

XL  The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  an- 
other State,  or  by  citizens  or  subjects  of  any  foreign  State. 

XII.  §  1.  The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one  of. 
whom,  at  least,  shalt  not  be  an  inhabitant  of  the  same  State  with 
themselves ;  they  shall  name  in  their  ballots  the  person  voted 
for  as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice-President ;  and  they  shall  make  distinct  lists  of  all  per- 
sons voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which 
list  they  shall  sign  and  certify,  and  transmit  sealed  to  the  Gov- 
ernment of  the  United  States,  directed  to  the  President  of  the 
Senate ;  the  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certifi- 
cates, and  the  votes  shall  then  be  counted ;  the  person  having 
the  greatest  number  of  votes  for  President  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed ;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the  Presi- 
dent. But,  in  choosing  the  President,  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two  thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  §  2.  The  person  having  the  greatest 
number  of  votes  as  Vice-President  shall  be  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of  Electors 


472  APPENDIX. 

appointed ;  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  hst  the  Senate  shall  choose  the 
Vice-President ;  a  quorum  for  the  purpose  shall  consist  of  two 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  §  3.  But  no  per- 
son constitutionally  ineligible  to  the  office  of  President  shall 
be  eligible  to  that  of  Vice-President  of  the  United  States. 


D,  p.  V. 

WILLIAM    DUER^   TO    JAMES   MADISON. 

New  York,  June  23,  1788. 
Dear  Sir, 

As  it  is  probable  you  may  not  hear  by  this  post  from  our 
mutual  friend,  Colonel  Hamilton,  I  take  the  liberty  of  giving 
you  a  short  sketch  of  our  political  prospects  in  this  quarter  on 
the  great  question  of  the  Constitution.  My  information  is  from 
Colonel  Laurance,'*  who  left  Poughkeepsie  on  Saturday. 

A  considerable  majority  of  the  Convention  are  undoubtedly 
Anti-Federal ;  or,  in  other  words,  wish  for  amendments  pre- 
vious to  the  adoption  of  the  Government.  A  few  of  the  leaders 
(among  which  I  think  I  may,  without  scruple,  class  the  Gov- 
ernor) *  would,  if  they  could  find  support,  go  further,  and  hazard 
every  thing  rather  than  agree  to  any  system  which  tended  to  a 
consolidation  of  our  Government.  Of  this,  however,  I  have  at 
present  no  apprehensions,  many  of  their  party  having  avowed 
themselves  friends  to  the  Union.  "With  respect  to  amendments, 
as  far  as  I  can  understand  the  party  in  opposition,  they  cannot 
agree  among  themselves.  It  is  therefore  possible  that  this 
circumstance  may  create  a  division  in  favor  of  the  Federalists. 

1  Formerly  a  member  of  the  Continental  Congress,  and  then  Secretary 
to  the  Treasury-board  of  the  United  States. 

2  John  Laurance,  Judge- Advocate  General  in  the  revolutionary  army, 
and  afterwards  a  Senator  in  Congress  from  New  York. 

'  Greorge  Clinton. 


APPENDIX.  473 

As  to  the  rejection  of  the  Constitution,  there  is  not  the  least 
probability  of  it.  The  great  points  of  discussion  will  probably 
be,  whether  they  will  adjourn  without  coming  to  any  decision, 
or  whether  they  will  adopt  it  conditionally,  or  follow  the  ex- 
ample of  Massachusetts  and  South  Carolina. 

The  conduct  of  your  Convention  will  influence,  in  a  great 
degree,  ours.  If  you  adjourn  without  doing  any  thing,  we  shall 
do  the  same ;  but,  if  you  do  not,  there  is  still  some  hope  that 
we  may  adopt,  with  proposed  amendments  :  for,  as  to  the 
second  point,  the  inconsistency  of  it  will,  I  think,  be  too  ap- 
parent after  a  decision  to  command  a  majority.  While  I  am 
writing,  a  gentleman  has  favored  me  with  a  copy  of  a  letter 
from  an  intelligent  bystander,^  who  has  attended  the  debates  of 
the  Convention ;  I  therefore  inclose  it,  as  a  more  faithful  his- 
tory than  I  can  give. 

I  am,  with  sentiments  of  the  most  profound  esteem, 
Your  obedient,  humble  servant, 

William  Duer. 

james  kent^  to  robert  troup.' 

Poughkeepsie,  Friday,  Jane  20,  1788. 
Dear  Sir, 

1  had  the  pleasure  of  receiving  your  letter  by  Mr.  Hari^n,* 
and  in  compliance  with  your  desire,  I  shall  shortly  state  to  you 
the  proceedings  of  the  Convention  hitherto. 

They  met  on  Tuesday  in  pretty  full  house,  and  elected  Gov- 
ernor Clinton  president,  and  appointed  by  ballot  Duane,  Morris, 
Lansing,^  Jones,*  and  Hening,  a  committee  for  reporting  rules  for 

'  James  Kent. 

2  The  late  Chancellor,  who  had  lately  commenced  the  practice  of  the  law 
at  Poughkeepsie,  where  the  State  Convention  was  sitting. 

8  Afterwards  District  Judge  of  the  United  States  for  New  York. 
*  Afterwards  United  States  District  Attorney  for  New  York. 
6  Afterwards  Chancellor  of  the  State. 

8  An  eminent  lawyer,  afterwards  Recorder  of  the  city  of  New  York, 
and  subsequently  Comptroller  of  the  State  Treasmy. 

40* 


474  APPENDIX. 

the  regulation  of  the  Convention.  On  Wednesday,  the  rules 
were  adopted,  the  Constitution  read,  and  a  motion  made  by 
Mr.  Lansing,  and  agreed  to,  that  they  would  on  the  next  day 
resolve  themselves  into  a  committee  of  the  whole  for  the  pur- 
pose of  discussing  the  Constitution.  On  Thursday,  which  was 
yesterday,  the  house  resolved  itself  into  a  committee,  Mr.  Oouth- 
out,  of  Albany,  chairman.  Chancellor  Livingston^  rose  and 
called  our  attention  to  a  fine  introductory  speech  of  one  hour's 
length.  He  mentioned  the  importance  of  the  occasion,  and  the 
peculiar  felicity  of  this  country,  which  had  it  in  its  power  to 
originate  and  establish  its  government  from  reason  and  choice, 
while  on  the  Eastern  Continent,  their  governments  and  the 
reforms  of  them  were  the  children  of  force.  He  then  pointed 
out  the  necessity  of  Union,  particularly  in  this  State,  from  its 
local  situation,  which  rendered  it  peculiarly  vulnerable,  not  only 
to  foreigners,  but  to  its  neighbors.  He  stated  that  a  Union  was 
to  be  expected  only  from  the  old  Confederation,  or  from  the 
government  now  under  their  consideration.  He  then  demon- 
strated the  radical  defects  of  the  Confederation  ;  that  its  prin- 
ciple was  bad,  in  legislating  for  States  in  their  political  capacity, 
as  its  constitutional  demands  could  only  be  coerced  by  arms ; 
that  it  was  equally  defective  in  form,  as  the  Congress  was  a 
single  body,  too  small  and  too  liable  to  faction,  from  its  being  a 
single  body,  to  be  intrusted  with  Legislative  power,  and  too 
numerous  to  be  intrusted  with  Executive  authority.  The  Chan- 
cellor, on  this  head,  only  gave  a  summary  of  the  arguments  of 
Puhlius  *  when  treating  on  the  defects  of  the  Confederation ; 
but  the  summary  was  neither  so  perfect  nor  so  instructive,  by  a 
vast  difference,  as  the  original.  It  was  not,  however,  to  be 
expected  in  a  short  address.  He  concluded  that  survey  by 
entreating  the  House  to  divest  themselves  of  prejudice  and 
warmth,  to  examine  the  plan  submitted  with  the  utmost  coolness 
and  candor,  to  consider  themselves  as  citizens  assembled  to 

1  Eobert  R.  Livingston,  afterwards  United  States  Minister  to  the  French 
Republic  during  the  Presidency  of  Mr.  Jefferson. 
2  The  signature  adopted  by  the  authors  of  "  The  Federalist." 


APPENDIX.  475 

consult  for  the  general  good,  and  not  as  State  officers,  who 
might  be  opposed,  in  that  capacity,  to  every  determination  of 
their  authority.  He  concluded  his  speech  by  a  motion  which, 
with  some  amendments,  was  agreed  to  by  the  House,  that  they 
would  discuss  the  Constitution  by  paragraphs,  and  any  amend- 
ments which  might  be  proposed  in  the  course  of  the  debate, 
without  taking  the  question  as  to  any  paragraphs,  or  as  to  any 
amendments  which  might  be  offered,  until  the  whole  Constitu- 
tion was  discussed.  This,  sir,  is  a  sketch  of  the  proceedings  of 
the  Convention  to  this  day.  "We  expect  they  will  this  moi'ning 
enter  on  the  subject  by  paragraphs.  I  imagine  they  will  be 
some  time  engaged  in  the  discussion,  probably  three  weeks. 
As  to  the  result,  I  can  only  say  I  look  forward  to  it  with  anxious 
uncertainty.  I  do  not  abandon  hope.  I  think  the  opposition 
discover  great  embarrassment.  I  believe  they  do  not  know 
what  to  do.  Some  *of  them,  I  am  told,  have  said  they  will  not 
vote  against  it.  The  decision  in  New  Hampshire  and  Virginia, 
we  are  flattering  ourselves,  will  be  favorable ;  and  that  they 
will  give  energy  to  the  debate  on  one  side  in  our  Convention, 
and  confusion,  if  not  absolute  despair,  to  the  other  side.  I  hope 
you  and  our  friends  in  New  York  will  give  us  the  earliest  in- 
formation from  those  States. 

In  giving  you  the  heads  of  the  Chancellor's  speech,  I  believe 
I  am  not  mistaken.  He  spoke  rather  low,  and  there  was  so 
much  noise,  and  the  bar  so  much  crowded,  that  I  confess  I  lost 
at  least  one  third  of  the  speech,  though  I  trust  not  the  general 
course  of  reasoning.  What  I  regretted  more,  I  lost  some  of 
his  figures,  for  which  he  is  peculiarly  eminent.  I  shall  take  the 
liberty  to  trespass  on  your  patience  by  every  opportunity,  as  I 
trust  your  curiosity  will  excuse  me. 

I  am,  &c.,  &c.,  James  Kent. 

P.  S.  I  am  directed  by  Mr.  Benson,^  to  request  you  will 
communicate  this  information  to  Colonel  Duer. 

1  The  late  Judge  Egbert  Benson. 


476  APPENDIX. 

william  duer  to  james  madison. 

My  dear  Sir, 

Our  mutual  friend,  Hamilton,^  has  communicated  to  me,  in 
confidence,  the  substance  of  your  letter  on  the  political  pros- 
pects in  Pennsylvania  and  Virginia.  I  learn  with  extreme 
regret  the  division  of  the  Federalists  in  the  former  State,  and 
the  malignant  perseverance  of  the  opponents  to  the  Constitution 
in  your  own.  I  trust,  however,  that  we  shall  have  the  benefit 
of  your  counsels  and  exertions  in  the  House  of  Representatives, 
notwithstanding  Mr.  Henry's  ^  manoeuvres  to  prevent  it. 

You  may  remember  some  conversation  I  once  had  with  you 
on  the  subject  of  electing  Mr.  John  Adams  as  Vice-President. 
I  have  ascertained,  through  General  Knox/  that  this  gentleman, 
if  chosen,  will  be  a  strenuous  opposer  against  calling  a  Con- 
vention, which,  in  the  present  state  of  parties,  I  consider  as  a 
vital  stab  to  the  Constitution ;  and  not  only  that,  I  have  been 
informed,  in  a  mode  perfectly  satisfactory,  that  he  and  his  old 
coadjutor,  R.  H.  Lee,  will  be  altogether  opposite  in  all  meas- 
ures relative  to  the  establishment  of  the  character  and  credit 
of  the  Government.  I  am  therefore  anxious  that  the  Fed- 
eralists to  the  southward  may  join  in  supporting  his  nomination. 
A  greater  knowledge  of  the  world  has  cured  him  of  his  old 
party  prejudices,  and  I  am  satisfied  nothing  is  to  be  feared 
from  that  quarter ;  on  the  contrary,  should  he  be  elected  to  that 
station  (which  I  am  fully  convinced  is  his  wish),  the  weight  of 
his  State  would  be  cast  into  the  Federal  scale. 

Interested  as  I  know  you  are  in  the  welfare  of  the  Union,  I 
cannot  omit  giving  you  this  information,  on  the  authenticity  of 
which  you  may  rely,  that  you  may  (without  committing  my 
name)  make  such  use  of  it  as  you  think  proper. 

I  am,  with  sentiments  of  great  esteem. 

Your  obedient,  humble  servant,       "William  Duer. 

P.  S.  I  have  no  objection  to  Messrs.  Robert  and  Gouverneur 
Morris  seeing  this  letter. 

1  Alexander  Hamilton.  2  Patrick  Henry. 

8  Henry  Knox,  Secretary  at  War,  in  Washington's  administration. 


APPENDIX.  477 

JAMES    MADISON   TO   WILLIAM   A.    DUER. 

Montpelier,  May  5,  1835. 
Dear  Sir, 

I  have  received  your  letter  of  April  25,  and,  with  the  aid 
of  a  friend,  an  amanuensis,  have  made  out  the  following  answer. 

On  the  subject  of  Mr.  Pinckney's  proposed  plan  of  a  Consti- 
tution, it  is  to  be  observed,  that  the  plan  printed  in  the  journal 
was  not  the  document  actually  presented  by  him  to  the  Con- 
vention. That  document  was  in  no  otherwise  noticed  in  the 
proceedings  of  the  Convention  than  by  a  reference  of  it,  with 
Mr.  Randolph's  ^  plan,  to  a  committee  of  the  whole,  and  after- 
ward to  a  committee  of  detail,  with  others  ;  and  not  being  found 
among  the  papers  left  with  President  "Washington,  and  finally 
deposited  in  the  Department  of  State,  Mr.  Adams,^  charged  with 
the  publication  of  them,  obtained  from  Mr.  Pinckney  ^  the  docu- 
ment in  the  printed  journal  as  a  copy  supplying  the  place  of  the 
missing  one.  In  this  there  must  be  error  ;  there  being  sufficient 
evidence,  even  on  the  surface  of  the  journals,  that  the  copy  sent 
to  Mr.  Adams  could  not  be  the  same  with  the  document  laid 
before  the  Convention.  Take,  for  example,  the  article  consti- 
tuting the  House  of  Representatives  —  the  corner-stone  of  the 
fabric;  the  identity,  even  verbal,  of  which,  with  the  adopted 
Constitution,  has  attracted  so  much  notice.  In  the  first  place, 
the  detail  and  phraseology  of  the  Constitution  appears  to  have 
been  the  result  of  successive  discussions,  and  are  too  minute 
and  exact  to  have  been  anticipated.  In  the  next  place,  it  ap- 
pears that,  within  a  few  days  after  Mr.  Pinckney  presented  his 
plan  to  the  Convention,  he  moved  to  strike  out  from  the  reso- 
lution of  Mr.  Randolph  the  provision  for  the  election  of  the 
House  of  Representatives  by  the  people,  and  refer  the  choice 
of  that  House  to  the  Legislatures  of  the  States ;  and  to  this 
preference  he  appears  to  have  adhered  in  the  subsequent  pro- 
ceedings  of   the  Convention.     Other   discrepancies   might   be 

1  Edmund  Randolph,  afterwards  Attorney- GSeneral  of  the  United  States. 

2  John  Quincy  Adams. 

8  Charles  Pinckney,  of  Sonth  Carolina. 


478  APPENDIX. 

found,  in  a  source  also  within  your  reach,  in  a  pamphlet  pub- 
lished by  Mr.  Pinckney  soon  after  the  close  of  the  Convention, 
in  which  he  refers  to  parts  of  his  plan  which  are  at  variance 
with  the  document  in  the  printed  journal.^  Further  evidence 
on  this  subject  await  a  future,  perhaps  a  posthumous  disclosure. 
One  conjecture  explaining  the  phenomena  has  been,  that  Mr. 
Pinckney  interwove  with  the  draft  sent  to  Mr.  Adams  passages 
as  agreed  on  in  the  Convention  in  the  progress  of  the  work, 
and  which,  after  a  lapse  of  more  than  thirty  years,  were  not 
separated  by  his  recollection. 

The  resolutions  of  Mr.  Randolph,  the  basis  on  which  the 
deliberations  of  the  committee  proceeded,  were  the  result  of  a 
consultation  among  the  Virginia  deputies,  who  thought  it  possi- 
ble that,  as  Virginia  had  taken  so  leading  a  part  in  reference  to 
the  Federal  Convention,  some  initiative  propositions  might  be 
expected  from  them.  They  were  understood  not  to  commit 
any  of  the  members,  absolutely  or  definitively,  on  the  tenor  of 
them.  The  resolutions  will  be  seen  to  present  the  characteristic 
provisions  and  features  of  a  government  as  complete,  in  some 
respects,  perhaps  more  so,  than  the  plan  of  Mr,  Pinckney, 
though  without  being  thrown  into  a  formal  shape.  The  mo- 
ment, indeed,  a  real  Constitution  was  looked  for  as  a  substitute 
for  the  Confederacy,  the  distribution  of  the  government  into 
the  usual  departments  became  a  matter  of  course  with  all  who 
speculated  on  the  prospective  change,  and  the  form  of  general 
resolutions  was  adopted,  as  most  respectful  to  the  Convention, 
and  as  the  most  convenient  for  discussion.  It  may  be  observed 
that,  in  reference  to  the  powers  to  be  given  to  the  General 
Government,  the  resolutions  comprehended  as  well  the  powers 
contained  in  the  Articles  of  Confederation,  without  enumerating 
them,  as  others  not  overlooked  in  the  resolutions,  but  left  to  be 
developed  and  defined  by  the  Convention. 

With  regard  to  the  plan  proposed  by  Mr.  Hamilton,  I  may 

1  Observations  on  the  Plan  of  Government  submitted  to  the  Federal  Conven- 
tion, on  the  2Sth  of  May,  1 787,  by  Charles  Pinckney,  &c.,  &c.  Vide  "  Select 
Facts,"  vol.  ii.,  in  the  library  of  the  Historical  Society  of  New  York. 


APPENDIX.  479 

say  to  you,  that  a  Constitution  such  as  you  describe  was  never 
proposed  in  the  Convention,  but  was  communicated  by  him  to 
me,  at  the  close  of  it.  The  original  draft  being  in  the  posses- 
sion of  his  family,  and  their  property,  I  have  considered  any 
pubhcity  of  it  as  lying  with  them.  Mr.  Yates's  notes,  as  you 
observe,  are  very  inaccurate  ;  they  are  also,  in  some  respects, 
grossly  erroneous.  The  desultory  manner  in  which  he  took 
them,  catching  sometimes  but  half  the  language,  may  in  part 
account  for  it.  Though  said  to  be  a  respectable  and  honorable 
man,  he  brought  with  him  to  the  Convention  the  strongest 
prejudices  against  the  existence  and  objects  of  that  body,  in 
which  he  was  strengthened  by  the  course  taken  in  its  delibera- 
tions. He  left  the  Convention  long  before  the  opinions  and 
views  of  many  members  were  finally  developed  into  their  prac- 
tical application.  The  passion  and  prejudice  of  Mr.  Luther 
Martin,  betrayed  in  his  public  letter,  could  not  fail  to  discolor 
his  representations.  He  also  left  the  Convention  before  the 
completion  of  their  work.  I  have  heard,  but  will  not  vouch- 
for  the  fact,  that  he  became  sensible  of,  and  admitted  his  error  ; 
certain  it  is  that  he  joined  the  party  who  favored  the  Constitu- 
tion in  its  most  liberal  construction. 

I  had,  as  you  may  recollect,  an  acquaintance  with  your 
father,^  to  which  his  talents  and  social  accomplishments  were 
very  attractive  ;  and  there  was  an  incidental  correspondence 
between  us,  interchanging  information  at  a  critical  moment, 
when  the  elections  and  State  Conventions  which  were  to  decide 
the  fate  of  the  new  Constitution  were  taking  place.  You  are, 
I  presume,  not  ignorant  that  your  father  was  the  author  of 
several  papers  auxiliary  to  the  numbers  of  "  The  Federalist." 
They  appeared,  I  believe,  in  the  Gazette  of  Mr.  Childs.^ 
With  great  respect  and  cordial  salutations,  yours, 

James  Madison. 

1  Colonel  William  Duer. 

2  Under  the  signature  of  Philo-Publius,  these  papers  treated  of  the 
financial  questions  and  benefits  arising  from  the  New  Constitution,  in  the 


480  APPENDIX. 

E,  p.  25. 

PROCLAMATION  BY  ANDREW  JACKSON,   PRESIDENT  OF  THE 
UNITED   STATES. 

"Whereas  a  convention  assembled  in  the  State  of  South 
Carolina  have  passed  an  ordinance,  by  which  they  declare 
"  that  the  several  Acts  and  parts  of  Acts  of  the  Congress  of 
the  United  States,  purporting  to  be  laws  for  the  imposing  of 
duties  and  imposts  on  the  importation  of  foreign  commodities, 
and  now  having  actual  operation  and  eflfect  within  the  United 
States,  and  more  especially  "  two  Acts,  for  the  same  purposes, 
passed  on  the  29th  of  May,  1828,  and  on  the  14th  of  July, 
1832,  "are  unauthorized  by  the  Constitution  of  the  United 
States,  and  violate  the  true  meaning  and  intent  thereof,  and  are 
null  and  void,  and  no  law,"  nor  binding  on  the  citizens  of  that 
State  or  its  officers ;  and  by  the  said  ordinance  it  is  further 
declared  to  be  unlawful  for  any  of  the  constituted  authorities 
of  the  State,  or  of  the  United  States,  to  enforce  the  payment 
of  the  duties  imposed  by  the  said  Acts  within  the  same  State, 
and  that  it  is  the  duty  of  the  Legislature  to  pass  such  laws  as 
may  be  necessary  to  give  full  effect  to  the  said  ordinance  : 

And  whereas,  by  the  said  ordinance  it  is  further  ordained 
that,  in  no  case  of  law  or  equity,  decided  in  the  courts  of  said 
State,  wherein  shall  be  drawn  in  question  the  validity  of  the 
said  ordinance,  or  of  the  Acts  of  the  Legislature  that  may  be 
passed  to  give  it  effect,  or  of  the  said  laws  of  the  United  States, 
no  appeal  shall  be  allowed  to  the  Supreme  Court  of  the  United 
States,  nor  shall  any  copy  of  the  record  be  permitted  or  allowed 
for  that  purpose ;  and  that  any  person  attempting  to  take  such 
appeal  shall  be  punished  as  for  a  contempt  of  court : 

And,  finally,  the  said  ordinance  declares  that  the  people  of 
South  Carolina  will  maintain  the  said  ordinance  at  every  hazard ; 

oi^anization  of  an  adequate  and  permanent  system  of  revenue  for  the 
support  of  the  Grovemment,  encouragement  of  domestic  manufactures,  and 
the  establishment  of  public  credit. 


APPENDIX.  481 

and  that  they  will  consider  the  passage  of  any  Act  by  Congress 
abolishing  or  closing  the  ports  of  the  said  State,  or  otherwise 
obstructing  the  free  ingress  or  egress  of  vessels  to  and  from  the 
said  ports,  or  any  other  Act  of  the  Federal  Government  to 
coerce  the  State,  shut  up  her  ports,  destroy  or.  harass  her 
commerce,  or  to  enforce  the  said  Acts  otherwise  than  through 
the  civil  tribunals  of  the  country,  as  inconsistent  with  the  longer 
continuance  of  South  Carolina  in  the  Union ;  and  that  the 
people  of  the  said  State  will  thenceforth  hold  themselves  ab- 
solved from  all  further  obligation  to  maintain  or  preserve  their 
political  connection  with  the  people  of  the  other  States,  and 
will  forthwith  proceed  to  organize  a  separate  Government,  and 
do  all  other  acts  and  things  which  sovereign  and  independent 
States  may  of  right  do  : 

And  whereas,  the  said  ordinance  prescribes  to  the  people  of 
South  Carolina  a  course  of  conduct  in  direct  violation  of  their 
duty  as  citizens  of  the  United  States,  contrary  to  the  laws  of 
their  country,  subversive  of  its  Constitution,  and  having  for  its 
object  the  destruction  of  the  Union  —  that  Union  which,  coeval 
with  our  political  existence,  led  our  fathers,  without  any  other 
ties  to  unite  them  than  those  of  patriotism  and  a  common  cause, 
through  a  sanguinary  struggle  to  a  glorious  independence  — 
that  sacred  Union,  hitherto  inviolate,  which,  perfected  by  our 
happy  Constitution,  has  brought  us,  by  the  favor  of  Heaven,, 
to  a  state  of  prosperity  at  home  and  high  consideration  abroad, 
rarely,  if  ever,  equalled  in  the  history  of  nations.  To  preserve 
this  bond  of  our  political  existence  from  destruction,  to  maintain, 
inviolate  this  state  of  national  honor  and  prosperity,  and  to- 
justify  the  confidence  my  fellow-citizens  have  reposed  in  me,. 
I,  Andrew  Jackson,  President  of  the  United  States,  have 
thought  proper  to  issue  this  my  PROCLAMATION,  stating 
my  views  of  the  Constitution  and  laws  applicable  to  the  meas- 
ures adopted  by  the  convention  of  South  Carolina,  and  to  the 
reasons  they  have  put  forth  to  sustain  them,  declaring  the 
course  which  duty  will  require  me  to  pursue,  and,  appealing  to 
41 


482  APPENDIX. 

the  understanding  and  patriotism  of  the  people,  warn  them  of 
the  consequences  that  must  inevitably  result  from  an  observance 
of  the  dictates  of  the  convention. 

Strict  duty  would  require  of  me  nothing  more  than  the  exer- 
cise of  those  powers  with  which  I  am  now,  or  may  hereafter 
be  invested,  for  preserving  the  peace  of  the  Union,  and  for  the 
execution  of  the  laws.  But  the  imposing  aspect  which  oppo- 
sition has  assumed  in  this  case,  by  clothing  itself  with  State 
authority,  and  the  deep  interest  which  the  people  of  the  United 
States  must  all  feel  in  preventing  a  resort  to  stronger  measures, 
while  there  is  a  hope  that  any  thing  will  be  yielded  to  reasoning 
and  remonstrance,  perhaps  demand,  and  will  certainly  justify  a 
full  exposition  to  South  Carolina,  and  the  nation,  of  the  views  I 
entertain  of  this  important  question,  as  well  as  a  distinct  enun- 
ciation of  the  course  which  my  sense  of  duty  will  require  me 
to  pursue. 

The  ordinance  is  founded,  not  on  the  indefeasible  right  of 
resisting  Acts  which  are  plainly  unconstitutional,  and  too  op- 
pressive to  be  endured,  but  on  the  strange  position  that  any  one 
State  may  not  only  declare  an  Act  of  Congress  void,  but  pro- 
hibit its  execution  ;  that  they  may  do  this  consistently  with  the 
Constitution  ;  that  the  true  construction  of  that  instrument 
permits  a  State  to  retain  its  place  in  the  Union,  and  yet  be 
bound  by  no  other  of  its  laws  than  those  it  may  choose  to  con- 
sider as  constitutional.  It  is  true,  they  add,  that,  to  justify  this 
abrogation  of  a  law,  it  must  be  palpably  contrary  to  the  Consti- 
tution ;  but  it  is  evident  that,  to  give  the  right  of  resisting  laws 
of  that  description,  coupled  with  the  uncontrolled  right  to 
decide  what  laws  deserve  that  character,  is  to  give  the  power 
of  resisting  all  laws.  For  as  by  the  theory  there  is  no  appeal, 
the  reasons  alleged  by  the  State,  good  or  bad,  must  prevail. 
If  it  should  be  said  that  public  opinion  is  a  sufficient  check 
against  the  abuse  of  this  power,  it  may  be  asked  why  it  is  not 
deemed  a  sufficient  guard  against  the  passage  of  an  unconsti- 
tutional Act  by  Congress.     There  is,  however,  a  restraint  in 


APPENDIX.  483 

this  last  case,  which  makes  the  assumed  power  of  a  State 
more  indefensible,  and  which  does  not  exist  in  the  other.  There 
are  two  appeals  from  an  unconstitutional  Act  passed  by  Con- 
gress—  one  to  the  Judiciary,  the  other  to  the  people  and  the 
States.  There  is  no  appeal  from  the  State  decision  in  theory ; 
and  the  practical  illustration  shows  that  the  Courts  are  closed 
against  an  application  to  review  it,  both  judges  and  jurors  being 
sworn  to  decide  in  its  favor.  But  reasoning  on  this  subject  is 
superfluous,  when  our  social  compact,  in  express  terms,  declares 
that  the  laws  of  the  United  States,  its  Constitution,  and  treaties 
made  under  it,  are  the  supreme  law  of  the  land ;  and,  for 
greater  caution,  adds,  "  that  the  Judges  in  every  State  shall  be 
bound  thereby,  any  thing  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding."  And  it  may  be  asserted, 
without  fear  of  refutation,  that  no  Federative  Government 
could  exist  without  a  similar  provision.  Look  for  a  moment  to 
the  consequence.  If  South  Carolina  considers  the  revenue 
laws  unconstitutional,  and  has  a  right  to  prevent  their  execution 
in  the  port  of  Charleston,  there  would  be  a  clear  constitutional 
objection  to  their  collection  in  every  other  port,  and  no  revenue 
could  be  collected  anywhere  ;  for  all  imposts  must  be  equal.  It 
is  no  answer  to  repeat  that  an  unconstitutional  law  is  no  law, 
so  long  as  the  question  of  its  legality  is  to  be  decided  by  the 
State  itself;  for  every  law  operating  injuriously  upon  any  local 
interest  will  be  perhaps  thought,  and  certainly  represented,  as 
unconstitutional ;  and,  as  has  been  shown,  there  is  no  appeal. 

If  this  doctrine  had  been  established  at  an  earlier  day,  the 
Union  would  have  been  dissolved  in  its  infancy.  The  excise 
law  in  Pennsylvania,  the  embargo  and  non-intercourse  law  in 
the  Eastern  States,  the  caiTiage-tax  in  Virginia,  were  all  deemed 
unconstitutional,  and  were  more  unequal  in  their  operation  than 
any  of  the  laws  now  complained  of;  but,  fortunately,  none  of 
those  States  discovered  that  they  had  the  right  now  claimed  by 
South  Carolina.  The  war  into  which  we  were  forced,  to  sup- 
port the  dignity  of  the  nation  and  the  rights  of  our  citizens. 


484  APPENDIX.     ' 

might  have  ended  in  defeat  and  disgrace,  instead  of  victory  and 
honor,  if  the  States,  who  supposed  it  a  ruinous  and  unconsti- 
tutional measure,  had  thought  they  possessed  the  right  of  nulli- 
fying the  Act  by  which  it  was  declared,  and  denying  supplies 
for  its  pi'osecution.  Hardly  and  unequally  as  those  measures 
bore  upon  several  members  of  the  Union,  to  the  Legislatures 
of  none  did  this  efficient  and  peaceable  remedy,  as  it  is  called, 
suggest  itself.  The  discovery  of  this  important  feature  in  our 
Constitution  was  reserved  to  the  present  day.  To  the  states- 
men of  South  Carolina  belongs  the  invention,  and  upon  the 
citizens  of  that  State  will,  unfortunately,  fall  the  evils  of  reduc- 
ing it  to  practice. 

If  the  doctrine  of  a  State  veto  upon  the  laws  of  the  Union 
carries  with  it  internal  evidence  of  its  impracticable  absurdity, 
our  constitutional  history  will  also  afford  abundant  proof  that 
it  would  have  been  repudiated  with  indignation,  had  it  been 
proposed  to  form  a  feature  in  our  government. 

In  our  colonial  state,  although  dependent  on  another  power, 
we  very  early  considered  ourselves  as  connected  by  common 
interest  with  each  other.  Leagues  were  formed  for  common 
defence,  and  before  the  Declaration  of  Independence,  we  were 
known  in  our  aggregate  character  as  The  United  Colonies 
OF  America.  That  decisive  and  important  step  was  taken 
jointly.  We  declared  ourselves  a  nation  by  a  joint,  not  by 
several  acts  ;  and  when  the  terms  of  our  confederation  were 
reduced  to  form,  it  was  in  that  of  a  solemn  league  of  several 
States,  by  which  they  agreed  that  they  would,  collectively,  form 
one  nation  for  the  purpose  of  conducting  some  certain  domestic 
concerns,  and  all  foreign  relations.  In  the  instrument  forming 
that  union,  is  found  an  article  which  declares  that ''  every  State 
shall  abide  by  the  determinations  of  Congress  on  all  questions 
which  by  that  confederation  should  be  submitted  to  them." 

Under  the  Confederation,  then,  no  State  could  legally  annul 
a  decision  of  the  Congress,  or  refuse  to  submit  to  its  execution ; 
but  no  provision  was  made  to  enforce  these  decisions.     Con- 


APPENDIX.  485 

gress  made  requisitions,  but  they  were  not  complied  with. 
The  Government  could  not  operate  on  individuals.  They  had 
no  judiciary,  no  means  of  collecting  revenue. 

But  the  defects  of  the  Confederation  need  not  be  detailed. 
Under  its  operation,  vre  could  scarcely  be  called  a  nation.  We 
had  neither  prosperity  at  home  nor  consideration  abroad.  This 
titate  of  things  could  not  be  endured,  and  our  present  happy 
Constitution  was  formed ;  but  formed  in  vain,  if  this  fatal  doc- 
trine prevails.  It  was  formed  for  important  objects  that  are 
announced  in  the  preamble  made  in  the  name  and  by  the 
authority  of  the  people  of  the  United  States,  whose  delegates 
framed,  and  whose  conventions  approved  it.  The  most  im- 
portant among  these  objects,  that  which  is  placed  first  in  rank, 
on  which  all  the  others  rest,  is,  '■'■to  form  a  more  perfect  union" 
Now,  is  it  possible  that,  even  if  there  were  no  express  pro- 
vision giving  supremacy  to  the  Constitution  and  laws  of  the 
United  States  over  those  of  the  States,  it  can  be  conceived  that 
an  instrument  made  for  the  purpose  of  '■^forming  a  more  perfect 
union  "  than  that  of  the  Confederation,  could  be  so  constructed 
by  the  assembled  wisdom  of  our  country  as  to  substitute  for 
that  Confederation  a  form  of  government  dependent  for  its 
existence  on  the  local  interest,  the  party  spirit  of  a  State,  or  of 
a  prevailing  faction  in  a  State  ?  Every  man  of  plain,  unso- 
phisticated understanding,  who  hears  the  question,  will  give 
such  an  answer  as  will  preserve  the  Union.  Metaphysical 
subtlety,  in  pursuit  of  an  impracticable  theory,  could  alone  have 
devised  one  that  is  calculated  to  destroy  it. 

I  consider,  then,  the  power  to  annul  a  law  of  the  United 
States,  assumed  by  one  State,  incompatible  with  the  exist- 
ence OF  THE  Union,  contradicted  expressly  by  the 
letter  of  the  Constitution,  unauthorized  by  its  spirit, 
inconsistent  with  every  principle  on  which  it  was 

founded,  and  DESTRUCTIVE  OF  THE  GREAT  OBJECT  FOR 
WHICH   IT   WAS   FORMED. 

After  this  general  view  of  the  leading  principle,  we  must 
41* 


486  APPENDIX. 

examine  the  particular  application  of  it  which  is  made  in  the 
ordinance. 

The  preamble  rests  its  justification  on  these  grounds :  It 
assumes  as  a  fact,  that  the  obnoxious  laws,  although  they  pur- 
port to  be  laws  for  raising  revenue,  were,  in  reality,  intended 
for  the  protection  of  manufactures,  which  purpose  it  asserts  to 
be  unconstitutional;  that  the  operation  of  these  laws  is  unequal; 
that  the  amount  raised  by  them  is  greater  than  is  required  by 
the  wants  of  the  Government ;  and,  finally,  that  the  proceeds 
are  to  be  applied  to  objects  unauthorized  by  the  Constitution. 
These  are  the  only  causes  alleged  to  justify  an  open  opposition 
to  the  laws  of  the  country,  and  a  threat  of  seceding  from  the 
Union,  if  any  attempt  should  be  made  to  enforce  them.  The 
first  virtually  acknowledges  that  the  law  in  question  was  passed 
under  a  power  expressly  given  by  the  Constitution  to  lay  and 
collect  imposts  ;  but  its  constitutionality  was  drawn  in  question 
from  the  motives  of  those  who  passed  it.  However  apparent 
this  purpose  may  be  in  the  present  case,  nothing  can  be  more 
dangerous  than  to  admit  the  position  that  an  unconstitutional 
purpose,  entei'tained  by  the  members  who  assent  to  a  law 
enacted  under  a  constitutional  power,  shall  make  that  law  void  ; 
for  how  is  that  purpose  to  be  ascertained  ?  Who  is  to  make 
the  scrutiny  ?  How  often  may  bad  purposes  be  falsely  imputed? 
in  how  many  cases  are  they  concealed  by  false  professions  ?  in 
how  many  is  no  declaration  of  motive  made  ?  Admit  this  doc- 
trine, and  you  give  to  the  States  an  uncontrolled  right  to  decide, 
and  every  law  may  be  annulled  under  this  pretext.  If,  there- 
fore, the  absurd  and  dangerous  doctrine  should  be  admitted  that 
a  State  may  annul  an  unconstitutional  law,  or  one  that  it  deems 
such,  it  will  not  apply  to  the  present  case. 

The  next  objection  is,  that  the  laws  in  question  operate  un- 
equally. This  objection  may  be  made  with  truth  to  every  law 
that  has  been  or  can  be  passed.  The  wisdom  of  man  never  yet 
contrived  a  system  of  taxation  that  would  operate  with  perfect 
equality.    If  the  unequal  operation  of  a  law  makes  it  unconstitu- 


APPENDIX.  487 

tional,  and  if  all  laws  of  that  description  may  be  abrogated  by  any 
State  for  that  cause,  then,  indeed,  is  the  Federal  Constitution 
unworthy  of  the  slightest  effort  for  its  preservation.  "We  have 
hitherto  relied  on  it  as  the  perpetual  bond  of  our  Union.  "We 
have  received  it  as  the  work  of  the  assembled  wisdom  of  the 
nation.  We  have  trusted  to  it  as  to  the  sheet-anchor  of  our 
safety,  in  the  stormy  times  of  conflict  with  a  foreign  or  domestic 
foe.  We  have  looked  to  it  with  sacred  awe  as  the  palladium 
of  our  liberties,  and,  with  all  the  solemnities  of  religion,  have 
pledged  to  each  other  our  lives  and  fortunes  here,  and  our  hopes 
of  happiness  hereafter,  in  its  defence  and  support.  Were  we 
mistaken,  my  countrymen,  in  attaching  this  importance  to  the 
Constitution  of  our  country  ?  Was  our  devotion  paid  to  the 
wretched,  inefficient,  clumsy  contrivance  which  this  new  doctrine 
would  make  it  ?  Did  we  pledge  ourselves  to  the  support  of  an 
airy  nothing  —  a  bubble  that  must  be  blown  away  by  the  first 
breath  of  disaffection  ?  Was  this  self-destroying,  visionary 
theory,  the  work  of  the  profound  statesmen,  the  exalted  patriots, 
to  whom  the  task  of  a  constitutional  reform  was  intrusted  ? 
Did  the  name  of  Washington  sanction,  did  the  States  delib- 
erately ratify,  such  an  anomaly  in  the  history  of  fundamental 
legislation  ?  No.  We  were  not  mistaken  !  The  letter  of  this 
great  instrument  is  free  from  this  radical  fault ;  its  language 
directly  contradicts  the  imputation;  its  spirit  —  its  evident  in- 
tent contradicts  it.  No,  we  did  not  err  !  Our  Constitution  does 
not  contain  the  absurdity  of  giving  power  to  make  laws,  and 
another  power  to  resist  them.  The  sages,  whose  memory  will 
always  be  reverenced,  have  given  us  a  practical,  and,  as  they 
hoped,  a  permanent  constitutional  compact.  The  father  of  his 
country  did  not  affix  his  revered  name  to  so  palpable  an  ab- 
surdity. Nor  did  the  States,  when  they  severally  ratified  it, 
do  so  under  the  impression  that  a  veto  on  the  laws  of  the  United 
States  was  reserved  to  them,  or  that  they  could  exercise  it  by 
implication.  Search  the  debates  in  all  their  conventions  — 
examine  the  speeches  of  the  most  zealous  opposers  of  Federal 


488  APPENDIX. 

authority  —  look  at  the  amendments  that  were  proposed.  They 
are  all  silent  —  not  a  syllable  uttered,  not  a  vote  given,  not  a 
motion  made,  to  correct  the  explicit  supremacy  given  to  the 
laws  of  the  Union  over  those  of  the  States  —  or  to  show  that 
implication,  as  is  now  contended,  could  defeat  it.  No,  we  have 
not  erred  !  The  Constitution  is  still  the  object  of  our  rever- 
ence, the  bond  of  our  Union,  our  defence  in  danger,  the  source 
of  our  prosperity  in  peace.  It  shall  descend,  as  we  have  re- 
ceived it,  uncorrupted  by  sophistical  construction,  to  our  pos- 
terity ;  and  the  sacrifices  of  local  interest,  of  State  prejudices, 
of  personal  animosities,  that  were  made  to  bring  it  into  exist- 
ence, will  again  be  patriotically  offered  for  its  support. 

The  two  remaining  objections  made  by  the  ordinance  to  these 
laws  are,  that  the  sums  intended  to  be  raised  by  them  are 
greater  than  are  required,  and  that  the  proceeds  will  be  uncon- 
stitutionally employed.  The  Constitution  has  given  expressly 
to  Congress  the  right  of  raising  revenue,  and  of  determining 
the  sum  the  public  exigencies  will  require.  The  States  have 
no  control  over  the  exercise  of  this  right,  other  than  that  which 
results  from  the  power  of  changing  the  representatives  who 
abuse  it,  and  thus  procure  redress.  Congress  may  undoubtedly 
abuse  this  discretionary  power,  but  the  same  may  be  said  of 
others  with  which  they  are  vested.  Yet  the  discretion  must 
exist  somewhere.  The  Constitution  has  given  it  to  the  repre- 
sentatives of  all  the  people,  checked  by  the  representatives  of 
the  States,  and  by  the  Executive  power.  The  South  Carolina 
construction  gives  it  to  the  Legislature  or  the  convention  of  a 
single  State,  where  neither  the  people  of  the  different  States, 
nor  the  States  in  their  separate  capacity,  nor  the  Chief  Magis- 
trate elected  by  the  people,  have  any  representation.  Which 
is  the  most  discreet  disposition  of  the  power?  I  do  not  ask 
you,  fellow-citizens,  which  is  the  constitutional  disposition  — 
that  instrument  speaks  a  language  not  to  be  misunderstood. 
But  if  you  were  assembled  in  General  Convention,  which  would 
you  think  the  safest  depository  of  this  discretionary  power  in 


APPENDIX.  489 

the  last  resort  ?  "Would  you  add  a  clause  giving  it  to  each  of 
the  States,  or  would  you  sanction  the  wise  provisions  already 
made  by  your  Constitution?  If  this  should  be  the  result  of 
your  deliberations  when  providing  for  the  future,  are  you  —  can 
you  —  be  ready  to  risk  all  that  we  hold  dear,  to  establish,  for  a 
temporary  and  a  local  purpose,  that  which  you  must  acknowl- 
edge to  be  destructive,  and  even  absurd,  as  a  general  provision  ? 
Carry  out  the  consequences  of  this  right  vested  in  the  different 
States,  and  you  must  perceive  that  the  crisis  your  conduct  pre- 
sents at  this  day  would  recur  whenever  any  law  of  the  United 
States  displeased  any  of  the  States,  and  that  we  should  soon 
cease  to  be  a  nation. 

The  ordinance,  with  the  same  knowledge  of  the  future  that 
characterizes  a  former  objection,  tells  you  that  the  proceeds  of 
the  tax  will  be  unconstitutionally  applied.  If  this  could  be 
ascertained  with  certainty,  the  objection  would,  with  more  pro- 
priety, be  reserved  for  the  law  so  applying  the  proceeds,  but 
surely  cannot  be  urged  against  the  laws  levying  the  duty. 

These  are  the  allegations  contained  in  the  ordinance.  Ex- 
amine them  seriously,  my  fellow-citizens  — judge  for  yourselves. 
I  appeal  to  you  to  determine  whether  they  are  so  clear,  so  con- 
vincing, as  to  leave  no  doubt  of  their  correctness ;  and  even  if 
you  should  come  to  this  conclusion,  how  far  they  justify  the 
reckless,  destructive  course,  which  you  are  directed  to  pursue. 
Review  these  objections,  and  the  conclusions  drawn  from  them, 
once  more.  What  are  they  ?  Every  law,  then,  for  raising 
revenue,  according  to  the  South  Carolina  ordinance,  may  be 
rightfully  annulled,  unless  it  be  so  framed  as  no  law  ever  will 
or  can  be  framed.  Congress  have  a  right  to  pass  laws  for 
raising  revenue,  and  each  State  has  a  right  to  oppose  their 
execution  —  two  rights  directly  opposed  to  each  other ;  and  yet 
is  this  absurdity  supposed  to  be  contained  in  an  instrument 
drawn  for  the.  express  purpose  of  avoiding  collisions  between 
the  States  and  the  General  Government,  by  an  assembly  of 
the  most  enlightened  statesmen  and  purest  patriots  ever  em- 
bodied for  a  similar  purpose. 


490  APPENDIX. 

In  vain  have  these  sages  declared  that  Congress  shall  have 
power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises ;  in 
vain  have  they  provided  that  they  shall  have  power  to  pass 
laws  which  shall  be  necessary  and  proper  to  carry  those  powers 
into  execution  ;  that  those  laws  and  that  Constitution  shall  be 
the  "supreme  law  of  the  land;  and  that  the  judges  in  every 
State  shall  be  bound  thereby,  any  thing  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding."  In  vain 
have  the  people  of  the  several  States  solemnly  sanctioned  these 
provisions,  made  them  their  paramount  law,  and  individually 
sworn  to  support  them  whenever  they  were  called  on  to  execute 
any  office.  Vain  provisions !  ineffectual  restrictions  !  vile  pro- 
fanation of  oaths !  miserable  mockery  of  legislation  !  if  a  bare 
majority  of  the  voters  in  any  one  State  may,  on  a  real  or  sup- 
posed knowledge  of  the  intent  with  which  a  law  has  been 
passed,  declare  themselves  free  from  its  operations  —  say  here 
it  gives  too  little,  there  loo  much,  and  operates  unequally  — 
here  it  suffers  articles  to  be  free  that  ought  to  be  taxed,  there  it 
taxes  those  that  ought  to  be  free  -;-  in  this  case  the  proceeds  are 
intended  to  be  applied  to  purposes  which  we  do  not  approve,  in 
that  the  amount  raised  is  more  than  is  wanted.  Congress,  it  is 
true,  are  invested  by  the  Constitution  with  the  right  of  deciding 
these  questions  according  to  their  sound  discretion.  Congress 
is  composed  of  the  Representatives  of  all  the  States,  and  of  all 
the  people  of  all  the  States  ;  but  we,  part  of  the  people  of  one 
State,  to  whom  the  Constitution  has  given  no  power  on  the 
subject,  from  whom  it  has  expressly  taken  it  away  —  we,  who 
have  solemnly  agreed  that  this  Constitution  shall  be  our  law  — 
ice,  most  of  whom  have  sworn  to  support  it  —  we  now  abrogate 
this  law,  and  swear,  and  force  others  to  swear,  that  it  shall  not 
be  obeyed ;  and  we  do  this,  not  because  Congress  have  no  right 
to  pass  such  laws — this  we  do  not  allege  —  but  because  they 
have  passed  them  with  improper  views.  They  ^are  unconstitu- 
tional from  the  motives  of  those  who  passed  them,  which  we 
can  never  with  certainty  know,  from  their  unequal  operation  ; 


APPENDIX.  491 

although  it  is  impossible,  from  the  nature  of  things,  that  they 
should  be  equal ;  and  from  the  disposition  which  we  presume 
may  be  made  of  their  proceeds,  although  that  disposition  has 
not  been  declared.  This  is  the  plain  meaning  of  the  ordinance 
in  relation  to  laws  which  it  abrogates  for  alleged  unconstitution- 
ality. But  it  does  not  stop  there.  It  repeals,  in  express  terms, 
an  important  part  of  the  Constitution  itself,  and  of  laws  passed 
to  give  it  effect,  which  have  never  been  alleged  to  be  unconsti- 
tutional. The  Constitution  declares  that  the  Judicial  powers  of 
the  United  States  extend  to  cases  arising  under  the  laws  of  the 
United  States,  and  that  such  laws,  the  Constitution,  and  treaties, 
shall  be  paramount  to  the  State  Constitutions  and  laws.  The 
Judiciary  Act  prescribes  the  mode  by  which  the  case  may  be 
brought  before  a  court  of  the  United  States,  by  appeal,  when 
a  State  tribunal  shall  decide  against  this  provision  of  the  Con- 
stitution. The  ordinance  declares  there  shall  be  no  appeal; 
makes  the  State  law  paramount  to  the  Constitution  and  laws  of 
the  United  States ;  forces  judges  and  jurors  to  swear  that  they 
will  disregard  their  provisions  ;  and  even  makes  it  penal  in  a 
suitor  to  attempt  relief  by  appeal.  It  further  declares  that  it 
shall  not  be  lawful  for  the  authorities  of  the  United  States,  or 
of  that  State,  to  enforce  the  payment  of  duties  imposed  by  the 
revenue  laws  within  its  limits. 

Here  is  a  law  of  the  United  States,  not  even  pretended  to  be 
unconstitutional,  repealed  by  the  authority  of  a  small  majority 
of  the  voters  of  a  single  State.  Here  is  a  provision  of  the 
Constitution  which  is  solemnly  abrogated  by  the  same  authority. 

On  such  expositions  and  reasonings  the  ordinance  grounds, 
not  only  an  assertion  of  the  right  to  annul  the  laws  of  which  it 
complains,  but  to  enforce  it  by  a  threat  of  seceding  from  the 
Union,  if  any  attempt  is  made  to  execute  them. 

This  right  to  secede  is  deduced  from  the  nature  of  the  Con- 
stitution, which,  they  say,  is  a  compact  between  sovereign 
States,  who  have  preserved  their  whole  sovereignty,  and,  there- 
fore, are  subject  to  no  superior ;  that,  because  they  made  the 


492  APPENDIX. 

compact,  they  can  break  it  when,  in  their  opinion,  it  has  been 
departed  from  by  the  other  States.  Fallacious  as  this  course  of 
reasoning  is,  it  enlists  State  pride,  and  finds  advocates  in  the 
honest  prejudices  of  those  who  have  not  studied  the  nature  of 
our  Government  sufiiciently  to  see  the  radical  error  on  which  it 
rests. 

The  people  of  the  United  States  formed  the  Constitution, 
acting  through  the  State  Legislatures  in  making  the  compact, 
to  meet  and  discuss  its  provisions,  and  acting  in  separate  con- 
ventions when  they  ratified  those  provisions  ;  but  the  terms 
used  in  its  construction  show  it  to  be  a  government  in  which 
the  people  of  all  the  States  collectively  are  represented.  We 
are  one  people  in  the  choice  of  the  President  and  Vice- 
President.  Here  the  States  have  no  other  agency  than  to 
direct  the  mode  in  which  the  votes  shall  be  given.  The  candi- 
dates having  the  majority  of  all  the  votes  are  chosen.  The 
electors  of  a  majority  of  States  may  have  given  their  votes  for 
one  candidate,  and  yet  another  may  be  chosen.  The  people, 
then,  and  not  the  States,  are  represented  in  the  Executive 
branch. 

In  the  House  of  Representatives  there  is  this  difference,  that 
the  people  of  one  State  do  not,  as  in  the  case  of  President  and 
Vice-President,  all  vote  for  the  same  ofiicers.  The  people  of 
all  the  States  do  not  vote  for  all  the  members,  each  State  elect- 
ing only  its  own  Representatives.  But  this  creates  no  material 
distinction.  When  chosen,  they  are  all  Representatives  of  the 
United  States,  not  Representatives  of  the  particular  State  from 
which  they  come.  They  are  paid  by  the  United  States,  not  by 
the  State  ;  nor  are  they  accountable  to  it  for  any  act  done  in 
the  performance  of  their  Legislative  functions  ;  and,  however 
they  may  in  practice,  as  it  is  their  duty  to  do,  consult  and  pre- 
fer the  interests  of  their  particular  constituents  when  they  come 
in  conflict  with  any  other  partial  or  local  interest,  yet  it  is  their 
first  and  highest  duty,  as  Representatives  of  the  United  States, 
to  promote  the  general  good. 


APPENDIX.  493 

The  Constitution  of  the  United  States,  then,  forms  a  govern- 
ment, not  a  league  ;  and  whether  it  be  formed  by  compact 
between  the  States,  or  in  any  other  manner,  its  character  is  the 
same.  It  is  a  Government  in  which  all  the  people  are  repre- 
sented, which  operates  directly  on  the  people  individually,  not 
upon  the  States  ;  they  retained  all  the  power  they  did  not  grant. 
But  each  State  having  expressly  parted  with  so  many  powers 
as  to  constitute,  jointly  with  the  other  States,  a  single  nation, 
cannot  from  that  period  possess  any  right  to  secede,  because 
such  secession  does  not  break  a  league,  but  destroys  the  unity 
of  a  nation  ;  and  any  injury  to  that  unity  is  not  only  a  breach 
which  would  result  from  the  contravention  of  a  compact,  but  it 
is  an  offence  against  the  whole  Union.  To  say  that  any  State 
may  at  pleasure  secede  from  the  Union,  is  to  say  that  the 
United  States  are  not  a  nation ;  because  it  Avould  be  a  solecism 
to  contend  that  any  part  of  a  nation  might  dissolve  its  connec- 
tion with  the  other  parts,  to  their  injury  or  ruin,  without  com- 
mitting any  offence.  Secession,  like  any  other  revolutionary 
act,  may  be  morally  justified  by  the  extremity  of  oppression ; 
but  to  call  it  a  constitutional  right  is  confounding  the  meaning 
of  terms,  and  can  only  be  done  through  gross  error,  or  to  de- 
ceive those  who  are  willing  to  assert  a  right,  but  would  pause 
before  they  make  a  revolution,  or  incur  the  penalties  consequent 
on  a  failure. 

Because  the  Union  was  formed  by  compact,  it  is  said  the 
parties  to  that  compact  may,  when  they  feel  themselves  ag- 
grieved, depart  from  it ;  but  it  is  precisely  because  it  is  a 
compact  that  they  cannot.  A  compact  is  an  agreement  or 
binding  obligation.  It  may,  by  its  terms,  have  a  sanction  or 
penalty  for  its  breach,  or  it  may  not.  If  it  contains  no  sanc- 
tion, it  may  be  broken  with  no  other  consequence  than  moral 
guilt ;  if  it  have  a  sanction,  then  the  breach  incurs  the  desig- 
nated or  implied  penalty.  A  league  between  independent 
nations,  generally,  has  no  sanction  other  than  a  moral  one  ;  or, 
if  it  should  contain  a  penalty,  as  there  is  no  common  superior, 
42 


494  APPENDIX. 

it  cannot  be  enforced.  A  Government,  on  the  contrary,  always 
has  a  sanction,  expressed  or  implied;  and  in  our  case,  it  is 
both  necessarily  implied  and  expressly  given.  An  attempt  by 
force  of  arms  to  destroy  a  Government,  is  an  offence,  by  what- 
ever means  the  constitutional  compact  may  have  been  formed ; 
and  such  Grovemment  has  the  right,  by  the  law  of  self-defence, 
to  pass  Acts  for  punishing  the  offender,  unless  that  right  is 
modified,  restrained,  or  resumed  by  the  constitutional  Act.  In 
our  system,  although  it  is  modified  in  the  case  of  treason,  yet 
authority  is  expressly  given  to  pass  all  laws  necessary  to  carry 
its  powers  into  effect,  and  under  this  grant  provision  has  been 
made  for  punishing  acts  which  obstruct  the  due  administration 
of  the  laws. 

It  would  seem  superfluous  to  add  any  thing  to  show  the  nature 
of  that  union  which  connects  us  ;  but,  as  erroneous  opinions  on 
this  subject  are  the  foundation  of  doctrines  the  most  destructive 
to  our  peace,  I  must  give  some  further  development  to  my 
views  on  this  subject.  No  one,  fellow-citizens,  has  a  higher 
reverence  for  the  reserved  rights  of  the  States  than  the  magis- 
trate who  now  addresses  you.  No  one  would  make  greater 
personal  sacrifices,  or  official  exertions,  to  defend  them  from 
violation ;  but  equal  care  must  be  taken  to  prevent,  on  their 
part,  an  improper  interference  with,  or  resumption  of,  the  rights 
they  have  vested  in  the  nation.  The  line  has  not  been  so 
distinctly  drawn  as  to  avoid  doubts  in  some  cases,  of  the  exer- 
cise of  power.  Men  of  the  best  intentions  and  soundest  views, 
may  differ  in  their  construction  of  some  parts  of  the  Constitu- 
tion, but  there  are  others  on  which  dispassionate  reflection  can 
leave  no  doubt.  Of  this  nature  appears  to  be  the  assumed 
right  of  secession.  It  rests,  as  we  have  seen,  on  the  alleged 
undivided  sovereignty  of  the  States,  and  on  their  having  formed 
in  this  sovereign  capacity  a  compact  which  is  called  the  Consti- 
tution, from  which,  because  they  made  it,  they  have  the  right  to 
secede.  Both  of  these  positions  are  erroneous,  and  some  of 
the  arguments  to  prove  them  so  have  been  anticipated. 


APPENDIX.  495 

'  The  States  severally  have  not  retained  their  entire  sov- 
ereignty. It  has  been  shown  that,  in  becoming  parts  of  a 
nation,  not  members  of  a  league,  they  surrendered  many  of 
their  essential  parts  of  sovereignty.  The  right  to  make  trea- 
ties, declare  war,  levy  taxes,  exercise  exclusive  Judicial  and 
Legislative  powers,  were  all  of  them  functions  of  sovereign 
power.  The  States,  then,  for  all  these  important  purposes, 
were  no  longer  sovereign.  The  allegiance  of  their  citizens  was 
transferred,  in  the  first  instance,  to  the  Government  of  the 
United  States  ;  they  became  American  citizens,  and  owed 
obedience  to  the  Constitution  of  the  United  States,  and  to  laws 
made  in  conformity  with  the  powers  it  vested  in  Congress. 
This  last  position  has  not  been  and  cannot  be  denied.  How, 
then,  can  that  State  be  said  to  be  sovereign  and  independent, 
whose  citizens  owe  obedience  to  laws  not  made  by  it,  and  whose 
magistrates  are  sworn  to  disregard  those  laws  when  they  come 
in  conflict  with  those  passed  by  another?  What  shows  con- 
clusively that  the  States  cannot  be  said  to  have  reserved  an 
undivided  sovereignty  is,  that  they  expressly  ceded  the  right  to 
punish  treason  —  not  treason  against  their  separate  power  — 
but  treason  against  the  United  States.  Treason  is  an  offence 
against  sovereignty,  and  sovereignty  must  reside  with  the  power 
to  punish  it.  But  the  reserved  rights  of  the  States  are  not 
less  sacred  because  they  have  for  their  common  interest  made 
the  General  Government  the  depository  of  these  powers.  The 
unity  of  our  political  character  (as  has  been  shown  for  another 
purpose)  commenced  with  its  very  existence.  Under  the  royal 
government  we  had  no  separate  character  —  our  opposition  to 
its  oppressions  began  as  United  Colonies.  We  were  the 
United  States  under  the  Confederation,  and  the  name  was 
perpetuated,  and  the  Union  rendered  more  perfect  by  the 
Federal  Constitution.  In  none  of  these  stages  did  we  consider 
ourselves  in  any  other  light  than  as  forming  one  nation.  Trea- 
ties and  alliances  were  made  in  the  name  of  all.  Troops  were 
raised  for  the  joint  defence.     How,  then,  with  all  these  proofs 


496  APPENDIX. 

that,  under  all  changes  of  our  position,  we  had,  for  designated 
purposes  and  with  defined  powers,  created  national  govern- 
ments—  how  is  it,  that  the  most  perfect  of  those  several  modes 
of  union  should  now  be  considered  as  a  mere  league,  that  may 
be  dissolved  at  pleasure  ?  It  is  from  an  abuse  of  terms.  Com- 
pact is  used  as  synonymous  with  league,  although  the  true  term 
is  not  employed,  because  it  would  at  once  show  the  fallacy  of 
the  reasoning.  It  would  not  do  to  say  that  our  Constitution 
was  only  a  league  ;  but  it  is  labored  to  prove  it  a  compact, 
(which  in  one  sense  it  is,)  and  then  to  argue  that,  as  a  league 
is  a  compact,  every  compact  between  nations  must  of  course  be 
a  league,  and  that  from  such  an  engagement  every  sovereign 
power  has  a  right  to  recede.  But  it  has  been  shown  that  in 
this  sense  the  States  are  not  sovereign,  and  that  even  if  they 
were,  and  the  National  Constitution  had  been  formed  by  com- 
pact, there  would  be  no  right  in  any  one  State  to  exonerate 
itself  from  its  obligations. 

So  obvious  are  the  reasons  which  forbid  this  secession,  that 
it  is  necessary  only  to  allude  to  them.  The  Union  was  formed 
for  the  benefit  of  all.  It  was  produced  by  mutual  sacrifices  of 
interests  and  opinions.  Can  those  sacrifices  be  recalled  ?  Can 
the  States  who  magnanimously  surrendered  their  title  to  the 
territories  of  the  "West  recall  the  grant  ?  Will  the  inhabitants 
of  the  inland  States  agree  to  pay  the  duties  that  may  be  im- 
posed without  their  assent  by  those  on  the  Atlantic  or  the  Gulf, 
for  their  own  benefit  ?  Shall  there  be  a  free  port  in  one  State, 
and  onerous  duties  in  another  ?  No  one  believes  that  any  right 
exists  in  a  single  State  to  involve  all  the  others  in  these  and 
countless  other  evils,  contrary  to  the  engagements  solemnly 
made.  Every  one  must  see  that  the  other  States,  in  self-defence, 
must  oppose,  at  all  hazards. 

These  are  the  alternatives  that  are  presented  by  the  conven- 
tion :  a  repeal  of  all  the  Acts  for  raising  revenue,  leaving  the 
Government  without  the  means  of  support ;  or  an  acquiescence 
in  the  dissolution  of  the  Union  by  the  secession  of  one  of  its 


APPENDIX.  497 

members.  ■  When  the  first  was  proposed,  it  was  known  that  it 
could  not  be  listened  to  for  a  moment.  It  was  known  that,  if 
force  was  applied  to  oppose  the  execution  of  the  laws,  that  it  must 
be  repelled  by  force  ;  that  Congress  could  not,  without  involving 
itself  in  disgrace,  and  the  country  in  ruin,  accede  to  the  propo- 
sition ;  and  yet,  if  this  is  not  done  in  a  given  day,  or  if  any 
attempt  is  made  to  execute  the  laws,  the  State  is,  by  the  ordi- 
nance, declared  to  be  out  of  the  Union.  The  majority  of  a 
convention  assembled  for  the  purpose  have  dictated  these  terms, 
or  rather  this  rejection  of  all  terms,  in  the  name  of  the  people 
of  South  Carolina.  It  is  true  that  the  Governor  of  the  State 
speaks  of  the  submission  of  their  grievances  to  a  convention  of 
all  the  States,  which,  he  says,  they  "  sincerely  and  anxiously 
seek  and  desire."  Yet  this  obvious  and  constitutional  mode  of 
obtaining  the  sense  of  the  other  States  on  the  construction  of 
the  Federal  compact,  and  amending  it,  if  necessary,  has  never 
been  attempted  by  those  who  have  urged  the  State  on  this 
destructive  measure.  The  State  might  have  proposed  the  call 
for  a  general  convention  to  the  other  States  ;  and  Congress,  if 
a  sufficient  number  of  them  concurred,  must  have  called  it. 
But  the  first  magistrate  of  South  Carolina,  when  he  expressed 
a  hope  that,  "  on  a  review  by  Congress  and  the  functionaries  of 
the  General  Government  of  the  merits  of  the  controversy," 
such  a  convention  will  be  accorded  to  them,  must  have  known 
that  neither  Congress  nor  any  functionary  of  the  General  Gov- 
ernment has  authority  to  call  such  a  convention,  unless  it  be 
demanded  by  two  thirds  of  the  States.  This  suggestion,  then, 
is  another  instance  of  the  reckless  inattention  to  the  provisions 
of  the  Constitution  with  which  this  crisis  has  been  madly 
hurried  on,  or  of  the  attempt  to  persuade  the  people  that  a 
constitutional  remedy  has  been  sought  and  refused.  If  the 
Legislature  of  South  Carolina  "  anxiously  desire  "  a  General 
Convention  to  consider  their  complaints,  why  have  they  not 
made  application  for  it  in  the  way  the  Constitution  points  out  ? 
42* 


498  APPENDIX. 

The  assertion  that  they  "  earnestly  seek  "  it  is  completely  nega- 
tived by  the  omission. 

This,  then,  is  the  position  in  which  we  stand.  A  small 
majority  of  the  citizens  of  one  State  in  the  Union  have  elected 
delegates  to  a  State  Convention :  that  Convention  has  ordained 
that  all  the  revenue  laws  of  the  United  States  must  be  repealed, 
or  that  they  are  no  longer  a  member  of  the  Union.  The  Gov- 
ernor of  that  State  has  recommended  to  the  Legislature  the 
raising  of  an  army  to  carry  the  secession  into  effect,  and  that 
he  may  be  empowered  to  give  clearances  to  vessels  in  the  name 
of  the  State.  No  act  of  violent  opposition  to  the  laws  has  yet 
been  committed,  but  such  a  state  of  things  is  hourly  appre- 
hended ;  and  it  is  the  intent  of  this  instrument  to  proclaim, 
not  only  that  the  duty  imposed  on  me  by  the  Constitution  "  to 
take  care  that  the  laws  be  faithfully  executed,"  shall  be  per- 
formed to  the  extent  of  the  powers  already  vested  in  me  by 
law,  or  of  such  other  as  the  wisdom  of  Congress  shall  devise 
and  intrust  to  me  for  that  purpose,  but  to  warn  the  citizens  of 
South  Carolina,  who  have  been  deluded  into  an  opposition  to 
the  laws,  of  the  danger  they  will  incur  by  obedience  to  the 
illegal  and  disorganizing  ordinance  of  the  convention ;  to  ex- 
hort those  who  have  refused  to  support  it  to  persevere  in  their 
determination  to  uphold  the  Constitution  and  laws  of  their 
country,  and  to  point  out  to  all  the  perilous  situation  into  which 
the  good  people  of  that  State  have  been  led  ;  and  that  the  course 
they  are  urged  to  pursue  is  one  of  ruin  and  disgrace  to  the  very 
State  whose  rights  they  affect  to  support. 

Fellow-citizens  of  my  native  State !  let  me  not  only  admonish 
you,  as  the  first  magistrate  of  our  common  country,  not  to  incur 
the  penalty  of  its  laws,  but  use  the  influence  that  a  father  would 
over  his  children  whom  he  saw  rushing  to  certain  ruin.  In  that 
paternal  language,  with  that  paternal  feeling,  let  me  tell  you, 
my  countrymen,  that  you  are  deluded  by  men  who  are  either 
deceived  themselves  or  wish  to  deceive  you.  Mark  under  what 
pretences  you  have  been  led  on  to  the  brink  of  insurrection  and 


APPENDIX.  499 

treason,  on  which  you  stand  !  First,  a  diminution  of  the  value 
of  your  staple  commodity,  lowered  by  over-production  in  other 
quarters,  and  the  consequent  diminution  in  the  value  of  your 
lands,  were  the  sole  effect  of  the  tariff  laws.  The  effect  of 
those  laws  are  confessedly  injurious,  but  the  evil  was  greatly 
exaggerated,  by  the  unfounded  theory  you  were  taught  to  be- 
lieve, that  its  burdens  were  in  proportion  to  your  exports,  not  to 
your  consumption  of  imported  articles.  Your  pride  was  roused 
by  the  assertion  that  a  submission  to  those  laws  was  a  state  of 
vassalage,  and  that  resistance  to  them  was  equal,  in  patriotic 
merit,  to  the  opposition  our  fathers  offered  to  the  oppressive  laws 
of  Great  Britain.  You  were  told  that  this  opposition  might 
be  peaceably  —  might  be  constitutionally  made ;  that  you  might 
enjoy  all  the  ^advantages  of  the  Union,  and  bear  none  of  its 
burdens. 

Eloquent  appeals  to  your  passions,  to  your  State  pride,  to  your 
native  courage,  to  your  sense  of  real  injury,  were  used  to 
prepare  you  for  the  period  when  the  mask,  which  concealed  the 
hideous  features  of  disunion,  should  be  taken  off.  It  fell,  and 
you  were  made  to  look  with  complacency  on  objects  which,  not 
long  since,  you  would  have  regarded  with  horror.  Look  back 
at  the  arts  which  have  brought  you  to  this  state — look  forward 
to  the  consequences  to  which  it  must  inevitably  lead !  Look 
back  to  what  was  first  told  you  as  an  inducement  to  enter  into 
this  dangerous  course.  The  great  political  truth  was  repeated 
to  you,  that  you  had  the  revolutionary  right  of  resisting  all 
laws  that  were  palpably  unconstitutional  and  intolerably  oppres- 
sive :  it  was  added  that  the  right  to  nullify  a  law  rested  on  the 
same  principle,  but  that  it  was  a  peaceable  remedy !  This 
character  which  was  given  to  it,  made  you  receive,  with  too 
much  confidence,  the  assertions  that  were  made  of  the  uncon- 
stitutionality of  the  law,  and  its  oppressive  effects.  Mark,  my 
fellow-citizens,  that  by  the  admission  of  your  leaders,  the  un- 
constitutionality must  be  palpahle,  or  it  will  not  justify  either 
resistance  or  nullification !     What  is  the  meaning  of  the  word 


600  APPENDIX. 

pdlpaUe,  in  the  sense  in  which  it  is  here  used  ?  —  that  which  is 
apparent  to  every  one ;  that  which  no  man  of  ordinary  intellect 
will  fail  to  perceive.  Is  the  unconstitutionality  of  these  laws 
of  that  description  ?  Let  those  among  your  leaders  who  once 
approved  and  advocated  the  principle  of  protective  duties, 
answer  the  question  ;  and  let  them  choose  whether  they  will  be 
considered  as  incapable  then  of  perceiving  that  which  must 
have  been  apparent  to  every  man  of  common  understanding,  or 
as  imposing  upon  your  confidence,  and  endeavoring  to  mislead 
you  now.  In  either  case,  they  are  unsafe  guides  in  the  peril- 
ous path  they  urge  you  to  tread.  Ponder  well  on  this  circum- 
stance, and  you  will  know  how  to  appreciate  the  exaggerated 
language  they  address  to  you.  They  are  not  champions  of 
liberty,  emulating  the  fame  of  our  revolutionary  fathers ;  nor 
are  you  an  oppressed  people,  contending,  as  they  repeat  to  you, 
against  worse  than  colonial  vassalage.  You  are  free  members 
of  a  flourishing  and  happy  Union.  There  is  no  settled  design 
to  oppress  you.  You  have,  indeed,  felt  the  unequal  operation 
of  laws  which  may  have  been  unwisely,  not  unconstitutionally 
passed ;  but  that  inequality  must  necessarily  be  removed.  At 
the  very  moment  when  you  were  madly  urged  on  the  unfortu- 
nate course  you  have  begun,  a  change  in  public  opinion  had 
commenced.  The  nearly  approaching  payment  of  the  public 
debt,  and  the  consequent  necessity  of  a  diminution  of  duties, 
had  already  produced  a  considerable  reduction,  and  that,  too,  on 
some  articles  of  general  consumption  in  your  State.  The  im- 
portance of  this  change  was  understood,  and  you  were  authori- 
tatively told  that  no  further  alleviation  of  your  burdens  was  to 
be  expected,  at  the  very  time  when  the  condition  of  the  country 
imperiously  demanded  such  a  modification  of  the  duties  as 
should  reduce  them  to  a  just  and  equitable  scale.  But,  as  if 
apprehensive  of  the  effect  of  this  change  in  allaying  your 
discontents,  you  were  precipitated  into  the  fearful  state  in 
which  you  now  find  yourselves. 

I  have  urged  you  to  look  back  to  the  means  that  were  used 


APPENDIX.  501 

to  hurry  you  on  to  the  position  you  have  now  assumed,  and 
forward  to  the  consequences  it  will  produce.  Something  more 
is  necessary.  Contemplate  the  condition  of  that  country  of 
which  you  still  form  an  important  part  ?  Consider  its  Govern- 
ment, uniting  in  one  bond  of  common  interests  and  general 
protection  so  many  different  States,  giving  to  all  their  inhabi- 
tants the  proud  title  of  American  Citizens,  protecting  their 
commerce,  securing  their  literature  and  their  arts,  facilitating 
their  intercommunication,  defending  their  frontiers,  and  making 
their  name  respected  in  the  remotest  parts  of  the  earth  !  Con- 
sider the  extent  of  its  territory,  its  increasing  and  happy 
population,  its  advance  in  arts,  which  render  life  agreeable,  and 
the  sciences,  which  elevate  the  mind !  See  education  spreading 
the  lights  of  religion,  humanity,  and  general  information  into 
every  cottage  in  this  wide  extent  of  our  Territories  and  States  ! 
Behold  it  as  the  asylum  where  the  wretched  and  the  oppressed 
find  a  refuge  and  support !  Look  on  this  picture  of  happiness 
and  honor,  and  say,  We,  too,  are  citizens  of  America  ; 
Carolina  is  one  of  these  proud  States  ;  her  arms  have  defended, 
her  best  blood  has  cemented  this  happy  Union  !  And  then  add, 
if  you  can,  without  horror  and  remorse,  this  happy  Union  we 
will  dissolve ;  this  picture  of  peace  and  prosperity  we  will 
deface  ;  this  free  intercourse  we  will  interrupt ;  these  fertile 
fields  we  will  deluge  with  blood ;  the  protection  of  that  glorious 
flag  we  renounce;  the  very  names  of  Americans  we  discard. 
And  for  what,  mistaken  men  !  —  for  what  do  you  throw  away 
these  inestimable  blessings  —  for  what  would  you  exchange 
your  share  in  the  advantages  and  honor  of  the  Union  ?  For 
the  dream  of  a  separate  independence — a  dream  interrupted 
by  bloody  conflicts  with  your  neighbors,  and  a  vile  dependence 
on  a  foreign  power.  If  your  leaders  could  succeed  in  establish- 
ing a  separation,  what  would  be  your  situation  ?  Are  you 
united  at  home  —  are  you  free  from  the  apprehension  of  civil 
discord,  with  all  its  fearful  consequences  ?  Do  our  neighboring 
republics,  every  day  suffering  some  new  revolution,  or  contend- 


502  APPENDIX. 

ing  with  some  new  insurrection  —  do  they  excite  your  envy  ? 
But  the  dictates  of  a  high  duty  oblige  me  solemnly  to  announce 
that  you  cannot  succeed. 

The  laws  of  the  United  States  must  be  executed.  I  have 
no  discretionary  power  on  the  subject  —  my  duty  is  emphati- 
cally pronounced  in  the  Constitution.  Those  who  told  you  that 
you  might  peaceably  prevent  their  execution,  deceived  you  — 
they  could  not  have  been  deceived  themselves.  They  know 
that  a  forcible  opposition  could  alone  prevent  the  execution  of 
the  laws,  and  they  know  that  such  opposition  must  be  repelled. 
Their  object  is  disunion  ;  but  be  not  deceived  by  names ;  dis- 
union, by  armed  force,  is  treason.  Are  you  really  ready  to 
incur  its  guilt  ?  If  you  are,  on  the  heads  of  the  instigators  of 
the  act  be  the  dreadful  consequences  —  on  their  heads  be  the 
dishonor,  but  on  yours  may  fall  the  punishment  —  on  your 
unhappy  State  will  inevitably  fall  all  the  evils  of  the  conflict 
you  force  upon  the  Government  of  your  country.  It  cannot 
accede  to  the  mad  project  of  disunion  of  which  you  would  be 
the  first  victims  —  its  first  magistrate  cannot,  if  he  would,  avoid 
the  performance  of  his  duty  —  the  consequence  must  be  fearful 
for  you,  distressing  to  your  fellow-citizens  here,  and  to  the 
friends  of  good  government  throughout  the  world.  Its  enemies 
have  beheld  our  prosperity  with  a  vexation  they  could  not 
conceal :  it  was  a  standing  refutation  of  their  slavish  doctrines, 
and  they  will  point  to  our  discord  with  the  triumph  of  malig- 
natit  joy.  It  is  yet  in  your  power  to  disappoint  them.  There 
is  yet  time  to  show  that  the  descendants  of  the  Pinckneys,  the 
Sumpters,  the  Rutledges,  and  of  the  thousand  other  names 
which  adorn  the  pages  of  your  revolutionary  history,  will  not 
abandon  that  Union  to  support  which  so  many  of  them  fought, 
and  bled,  and  died.  I  adjure  you,  as  you  honor  their  memory — 
as  you  love  the  cause  of  freedom,  to  which  they  dedicated  their 
lives  —  as  you  prize  the  peace  of  your  country,  the  lives  of  its 
best  citizens,  and  your  own  fair  fame,  to  retrace  your  steps. 
Snatch  from  the  archives  of  your  State  the  disorganizing  edict 


APPENDIX.  503 

of  its  convention ;  bid  its  members  to  reassemble  and  promul- 
gate the  decided  expressions  of  your  will  to  remain  in  the  path 
which  alone  can  conduct  you  to  safety,  prosperity,  and  honor  ; 
tell  them  that,  compared  to  disunion,  all  other  evils  are  light, 
because  that  brings  with  it  an  accumulation  of  all ;  declare  that 
you  will  never  take  the  field  unless  the  star-spangled  banner  of 
your  country  shall  float  over  you  ;  that  you  will  not  be  stigma- 
tized when  dead,  and  dishonored  and  scorned  while  you  live, 
as  the  authors  of  the  first  attack  on  the  Constitution  of  your 
country  !  Its  destroyers  you  cannot  be.  You  may  disturb  its 
peace  —  you  may  interrupt  the  course  of  its  prosperity — you 
may  cloud  its  reputation  for  stability  —  but  its  tranquillity  will 
be  restored,  its  prosperity  will  return,  and  the  stain  upon  its 
•national  character  will  be  transferred,  and  remain  an  eternal 
blot  on  the  memory  of  those  who  caused  the  disorder. 

Fellow-citizens  of  the  United  States  !  The  threat  of  unhal- 
lowed disunion  —  the  names  of  those,  once  respected,  by  whom 
it  is  uttered  —  the  array  of  military  force  to  support  it — denote 
the  approach  of  a  crisis  in  our  affairs  on  which  the  continuance 
of  our  unexampled  prosperity,  our  political  existence,  and  per- 
haps that  of  all  free  governments,  may  depend.  The  conjunc- 
tion demanded  a  free,  a  full,  and  explicit  enunciation,  not  only 
of  my  intentions,  but  of  my  principles  of  action ;  and  as  the 
claim  was  asserted  of  a  right  by  a  State  to  annul  the  laws  of 
the  Union,  and  even  to  secede  from  it  at  pleasure,  a  frank  ex- 
position of  my  opinions  in  relation  to  the  origin  and  form  of  our 
Government,  and  the  construction  I  give  to  the  instrument  by 
which  it  was  created,  seemed  to  be  proper.  Having  the  fullest 
confidence  in  the  justness  of  the  legal  and  constitutional  opinion 
of  my  duties  which  has  been  expressed,  I  rely  with  equal  confi- 
dence on  your  undivided  support  in  my  determination  to  execute 
the  laws  —  to  preserve  the  Union  by  all  constitutional  means  — 
to  arrest,  if  possible,  by  moderate  but  firm  measures,  the  neces- 
sity of  a  recourse  to  force  ;  and,  if  it  be  the  will  of  Heaven  that 
the  recurrence  of  its  primeval  curse  on  man  for  the  shedding  of 


504  APPENDIX. 

a  brother's  blood  should  fall  upon  our  land,  that  it  be  not  called 
down  by  any  offensive  act  on  the  part  of  the  United  States. 

Fellow-citizens !  The  momentous  case  is  before  you.  On 
your  undivided  support  of  your  Government  depends  the  de- 
cision of  the  great  question  it  involves,  whether  your  sacred 
Union  will  be  preserved,  and  the  blessings  it  secures  to  us  as 
one  people  shall  be  perpetuated.  No  one  can  doubt  that  the 
unanimity  with  which  that  decision  will  be  expressed,  will  be 
such  as  to  inspire  new  confidence  in  Republican  institutions ; 
and  that  the  prudence,  the  wisdom,  and  the  courage  which  it 
will  bring  to  their  defence,  will  transmit  them,  unimpaired  and 
invigorated,  to  our  children. 

May  the  great  Ruler  of  nations  grant  that  the  signal  blessings 
with  which  He  has  favored  ours  may  not,  by  the  madness  of 
party  or  personal  ambition,  be  disregarded  and  lost ;  and  may 
His  wise  providence  bring  those  who  have  produced  this  crisis 
to  see  the  folly,  before  they  feel  the  misery  of  civil  strife  ;  and 
inspire  a  returning  veneration  for  that  Union  which,  if  we  may 
dare  to  penetrate  His  designs.  He  has  chosen  as  the  only 
means  of  attaining  the  high  destinies  to  which  we  may  reasona- 
bly aspire. 

In  testimony  whereof,  I  have  caused  the  seal  of  the  United 

States  to  be  hereunto  affixed,  having  signed  the  same  with 

my  hand. 
Done  at  the  city  of  "Washington  this  10th  day  of  December, 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

thirty-two,  and  of  the  Independence  of  the  United  States 

the  fifty-seventh. 

ANDREW  JACKSON. 
By  the  President : 

Edw.  Livingston,  Secretary  of  State. 


APPENDIX.  505 

F.  p.  465. 
OPINION    AS     TO     THE     CONSTITUTIONAL     VALIDITY    OF    THE 
LAWS    OF    NEW    YORK    GRANTING    EXCLUSIVE   PRIVILEGES 
OF    STEAM    NAVIGATION. 

On  considering  the  case  submitted  to  me  on  behalf  of  Mr. 
Gibbons,  I  am  of  opinion  that  he  has  a  perfect  right  founded 
on  the  documents,  of  which  copies  are  appended  to  the  case,  to 
navigate  his  steamboats  on  all  the  waters  of  this  State,  which  it 
enjoys  in  common  with  New  Jersey,  and  which  communicate 
either  with  a  port  or  place  in  the  State  of  New  York,  or  empty 
into  the  Atlantic  Ocean  ;  and  that  such  right  is  not  taken  away, 
affected,  or  impaired  by  the  Legislative  grant  to  Messrs.  Liv- 
ingston and  Fulton.  I  should,  therefore,  advise  Mr.  Gibbons, 
instead  of  making  the  application  he  contemplates  to  the  Legis- 
lature, to  bring  the  questions  at  issue  between  him  and  its 
grantees,  to  trial  in  the  courts  of  the  United  States.  The 
reasons  that  govern  my  opinion  I  shall  briefly  state. 

The  case  of  Livingston  and  Fulton  v.  Van  Ingen  and  othersy. 
(9  Johns.  Rep.  507,)  furnishes,  as  I  humbly  conceive,  no  infer- 
ences hostile  to  the  claim  of  Mr.  Gibbons ;  but,  properly  con- 
sidered, strengthens  the  arguments  which  occur  to  me  in  support 
of  this  right.  The  great  question  in  that  cause  was  twofold, 
viz  :  Whether  the  grant  to  Livingston  and  Fulton  was  abso- 
lutely void,  as  made  in  contravention  of  the  constitutional  powers 
of  Congress,  ^rs^,  "  To  promote  the  progress  of  science  and  the 
useful  arts ; "  and,  secondly,  whether  it  were  repugnant  to  the 
power  vested  in  Congress  "  to  regulate  commerce." 

L  On  the  first  point,  the  Court  decided  that  the  grant  was 
not  absolutely  void,  on  two  grounds :  Jirst,  that,,  considering 
Messrs.  Livingston  and  Fulton  as  inventors,  the  State  had  a 
concurrent  right  with  Congress  to  reward  them  as  inventors,  by 
the  grant  of  exclusive  privileges  ;  secondly,  that,  considering 
them  not  as  inventors,  but  as  possessors  and  importers  of  a 
foreign  invention,  the  State  had  an  independent  power  to  re- 
43 


606  APPENDIX. 

ward  them  as  such ;  which  power  had  not  been  ceded  to  Con- 
gress at  all. 

It  must  be  borne  in  mind,  that  Van  Ingen  and  his  associates 
showed  no  right  or  title  whatever ;  and,  for  aught  that  appears, 
their  mode  of  applying  the  steam-engine  in  the  navigation  of 
their  boats  was  the  same  that  had  already  been  introduced  by 
Livingston  and  Fulton.  Throughout  the  whole  discussion,  the 
powers  of  the  State  were  assimilated  to  the  powers  of  Congress ; 
and  two  of  the  learned  judges,  by  whom  opinions  were  deliv- 
ered, Mr.  Justice  Thompson  and  Mr.  Justice  Yates,  explicitly 
admit  that  the  State  powers  can  only  be  legitimately  exer- 
cised in  harmony  with,  and  in  subordination  to,  the  svperior 
power  of  Congress.  In  strict  reasoning,  therefore,  no  more  can 
be  inferred  from  the  decision  of  the  Court  of  Errors  than  that 
the  grant  to  Livingston  and  Fulton  is  so  far  valid  as  to  secure 
to  them,  and  their  representatives,  an  exclusive  right  to  that 
peculiar  mode  of  navigating  vessels  by  steam  or  fire  which  they 
introduced  into  practice,  and  of  which  the  Act  of  Mai'ch,  1798, 
states  Mr,  Livingston  to  he  in  possession.  Such  is  the  extent  of 
the  constitutional  power  of  Congress,  to  which  the  State  powers 
are  resembled ;  and  it  is  only  by  this  limited  construction  of 
the  grant  that  the  reasoning  of  the  learned  judges  can  be  ren- 
dered applicable  and  consistent,  as  it  is,  then,  only  that  a 
"collision"  between  this  exercise  of  the  State  sovereignty  and 
the  constituticmal  power  of  Congress  can  possibly  be  prevented. 
Certainly  the  Court  of  Errors  has  not  said,  nor  is  there  any 
ground  for  supposing  that  it  meant  to  say,  that  the  State,  by 
virtue,  either  of  its  concurrent  power  to  reward  inventors,  or 
its  independent  power  to  reward  the  importers  of  foreign  inven- 
tions, can  prohibit  the  introduction  and  use,  within  its  jurisdic- 
tion, of  all  future  inventions,  although  secured  hy  patent,  in 
relation  to  the  same  object ;  or,  by  a  still  more  violent  stretch 
of  authority,  transfer  the  exclusive  right  to  such  inventions 
from  the  patentee  to  the  Legislative  favorite.  Yet,  if  the  terms 
of  the  original  grant  to  Messrs.  Livingston  and  Fulton,  and  of 


APPENDIX.  507 

the  various  laws  passed  to  enlarge  and  secure  that  grant,  are  to 
be  taken  in  their  literal  extent,  such  was  to  be  their  operation. 

By  the  Act  of  March,  1798,  all  the  privileges  granted  before 
to  John  Fitch  and  his  representatives  were  transferred  to  Mr. 
Livingston.  These  privileges  were  "  the  sole  and  exclusive 
right  of  constructing,  making,  using,  employing,  or  navigating 
all,  and  every  species  or  kind  of  boats  or  water-craft,  which 
might  be  urged  or  propelled  through  the  waters  of  this  State, 
by  force  of  fire  or  steam,  in  all  creeks,  rivers,  &c.,  within  the 
territory  and  jurisdiction  of  this  State."  It  must  be  remem- 
bered, that  the  grant  to  Fitch  was  made  previously  to  the  adop- 
tion of  the  present  Federal  Constitution,  and  before  the  State 
had  surrendered  this  portion  of  its  sovereignty  to  the  General 
Government;  while  it  remained  in  full  and  acknowledged  pos- 
session of  the  powers  to  reward  genius  and  skill,  and  to  en- 
courage and  foster  navigation  and  commerce,  by  the  means 
resorted  to  in  favor  of  John  Fitch.  But  she  had  ceded  those 
powers,  which,  to  be  effectual,  must  be  exclusive,  to  the  United 
States,  before  the  monopoly — for  this  is  the  proper,  though 
odious  term,  by  which  such  grants  should  be  designated — was 
attempted  to  be  vested  in  Messrs.  Livingston  and  Fulton.  The 
only  limitation  of  this  monopoly  of  navigation  is,  that  steam  or 
fire  be  made  use  of  as  the  propelling  force ;  and  the  general 
terms  of  the  grant  comprehend  every  possible  mode  of  produc- 
ing and  applying  that  force,  which  human  ingenuity  has  dis- 
covered or  can  invent. 

By  the  Act  of  1808,  creating  the  forfeiture,  it  is  declared 
that  "  no  person  or  persons,  without  the  license  of  the  persons 
entitled  to  the  exclusive  right,  shall  navigate  on  the  waters  of 
this  State,  or  within  the  jurisdiction  thereof,  any  boat  or  vessel 
moved  by  steam  or  fire."  Thus  the  introduction  into  this  State 
of  any  future  invention,  however  original  or  valuable,  in  navi- 
gating vessels  by  steam  or  fire,  is  in  terms  prohibited  without 
the  sanction  of  the  individuals  in  whom  the  right  to  employ  all 
such  inventions  is  exclusively  vested.     The  very  ground  on 


608  APPENDIX. 

which  invention  is  to  work  is  seized  upon  and  preoccupied,  and 
an  exclusive  privilege  given,  which  not  only  prevents  the  future 
reward  of  security  to  inventors,  but,  in  one  important  region, 
would  stop  the  progress  of  discovery  itself.  The  very  elements 
by  which  improvements  can  be  made  is  monopolized,  and  the 
occasion  snatched  from  Congress  of  exercising  the  power  given 
to  it  by  the  Constitution.  Now,  if  this  can  be  done  in  one 
State  in  relation  to  any  one  subject,  why  may  it  not  be  done  in 
all,  and  in  relation  to  all  ?  Where  are  we  to  fix  the  limit  of 
State  power?  Why  may  not  the  States,  respectively,  grant 
monopohes  embracing  all  the  possible  elements  and  materials, 
of  which  inventions  can  be  framed,  and  every  possible  subject 
upon  which  ingenuity  can  operate,  and  thus  anticipate  and 
frustrate,  in  toto,  the  exercise  of  the  constitutional  power  of 
Congress,  to  secure  an  exclusive  right  to  inventors  ? 

It  may  be  said  that  this  is  an  extreme  and  improbable  sup- 
position. I  admit  it  to  be  improbable  that  the  States  will 
attempt  such  an  exercise  of  power ;  but  it  is  by  extreme  cases, 
or,  to  speak  with  more  propriety,  it  is  by  pursuing  a  doctrine  to 
its  legitimate  consequences,  that  we  are  frequently  best  enabled 
to  detect  or  illustrate  its  absurdity.  If  the  constitutional  power 
of  Congress  can  be  taken  away  by  the  grant  of  a  State  monop- 
oly in  any  case,  I  am  at  a  loss  to  conceive  why  it  may  not,  by 
similar  means,  be  taken  away  in  all  cases.  The  principle  once 
admitted,  the  consequence,  of  necessity,  follows.  It  was  affirmed 
in  argument,  by  one  of  the  learned  counsel  ^  by  whom  the 
claim  of  Messrs.  Livingston  and  Fulton  was  so  ably  vindicated 
in  the  Court  of  Errors,  that  the  only  effect  of  a  patent  is  to 
confer  on  the  inventor  an  exclusive  right  of  property  in  his  dis~ 
covery ;  that,  at  common  law,  an  invention  or  discovery  is 
converted  into  a  chattel,  a  subject  to  which  a  right  of  property 
can  attach.  The  exercise,  however,  of  this  right  of  property 
is,  as  it  was  said,  still  liable  to  be  controlled  and  regulated  by 

1  The  late  Thomas  Addis  Emmet. 


APPENDIX.  509 

the  municipal  laws  of  the  several  States,  who  may  prohibit  the 
use  of  any  particular  invention,  as  noxious  to  the  health,  inju- 
rious to  the  morals,  or  in  any  other  respect  prejudicial  to  the 
welfare  of  its  citizens.  Wlien  I  declare  that  I  cannot  help 
entertaining  the  strongest  doubts  of  the  truth  and  soundness  of 
this  doctrine,  I  must  be  understood  to  speak  with  the  utmost 
diffidence  in  my  own  judgment,  and  with  the  highest  respect  for 
the  authority  of  those  by  whom  the  doctrine  has  been  advanced 
or  adopted.  It  seems  to  me  that  Congress  possesses  exclusively 
the  power  to  determine  whether  an  invention  for  wliich  a  patent 
is  sought  be  useful  or  pernicious  ;  in  other  words,  whether  it 
be  one  for  which  a  patent  ought  or  ought  not  to  be  granted. 
The  object  of  the  constitutional  power  of  Congress  to  secure 
an  exclusive  right  to  inventions,  is  the  promotion  of  the  "  useful 
arts."  An  invention  useless  or  pernicious,  it  is  evident,  would 
not  be  a  proper  object  for  its  exercise.  Should  a  patent  for 
such  an  invention  unadvisedly  have  issued,  there  can  -be  no 
doubt  that  Congress  might  repeal  the  patent,  and  interdict  the 
use  of  the  noxious  discovery. 

The  grant  of  the  power  in  question  to  Congress  would,  as  it 
appears  to  me,  be  completely  nugatory,  by  the  admission  that 
the  States,  in  the  exercise  of  an  absolute  discretion,  may  pro- 
hibit the  introduction  or  use  of  any  particular  invention,  for 
which  a  patent  has  been  regularly  obtained.  Were  this  con- 
struction of  the  Constitution  to  prevail,  the  States,  it  seems  to 
me,  would  retain,  substantially,  the  very  power  they  nominally 
have  parted  with.  What  is  the  Constitution  ?  It  is  the  instru- 
ment by  which  the  States  have  severally  ceded  to  the  Federal 
Government  a  certain  portion  of  their  own  sovereignty,  to  be 
exercised  for  the  common  good.  The  power  of  securing  the 
exclusive  right  of  inventors  is  thus  given.  But  if  the  States 
not  only  possess  a  concurrent  power  of  granting  exclusive  priv- 
ileges within  their  respective  limits,  but  may,  in  effect,  repeal 
and  annul,  ad  libitum,  any  and  all  patents  which  Congress  may- 
have  issued,  what  power,  I  may  ask,  in  relation  to  this  subject, 
43* 


510  APPENDIX. 

have  they  parted  with  ?  What  portion  of  their  sovereignty, 
quoad  hoc,  have  they  ceded  ?  The  whole  value  of  a  patent 
consists,  I  apprehend,  in  the  exclusive  privilege  of  using  the 
invention,  which  it  is  meant  to  ascertain  and  secure.  To  strip 
the  inventor  of  this,  in  order  to  confer  upon  him  a  barren 
metaphysical  right,  is  not  to  reward,  but  to  mock  and  insult 
him.  It  may  be  a  good  scholastic  distinction,  but  it  is  very 
contradictory  to  common  sense  to  say  that  a  man's  right  of 
property  is  not  invaded  when  his  use  and  enjoyment  of  it  are 
interdicted.  Suppose  a  State  Legislature,  jealous  of  the  over- 
grown and  accumulating  wealth  of  some  unpopular  landlord, 
should,  on  the  common  pretext  of  the  public  good,  release  his 
tenants,  in  perpeiuum,  from  the  payment  of  rents,  would  the 
lord  of  the  manor  of  Clermont  ^  consider  this  no  invasion  of  the 
Tight  of  property,  because  the  fee-simple,  technically  speaking, 
■would  still  remain  vested  in  the  obnoxious  proprietor  ? 

It  is  admitted  by  those  who  urge  the  doctrine  against  which 
I  am  contending,  that  the  States  cannot,  in  direct  terms,  divest 
or  take  away  an  exclusive  right  secured  by  patent.  But  to 
prohibit  the  exercise  of  such  a  right  within  the  jurisdiction  of 
^a  State,  and  during  the  whole  period  for  which  the  patent  has 
^een  granted,  is,  in  effect,  so  far  as  the  power  of  the  State 
•extends,  to  take  away  the  right  itself.  There  may  be  a  differ- 
ence in  the  terms  employed,  but  the  injury  to  the  patentee  is  in 
both  cases  precisely  the  same.  Nor  can  I  believe  that  the 
Federal  Courts  would  listen  to  the  verbal  distinction  by  which 
such  a  usurpation  of  power  is  attempted  to  be  justified.  It  is 
not  my  intention  to  deny  that  the  States  may,  by  their  own 
Jaws,  define  and  modify  the  rights  of  property  within  their 
respective  jurisdictions,  when  such  rights  have  their  origin  in 
the  State  or  municipal  law.  I  am  free  to  allow,  that  not  only 
the  exercise  of  those  rights  may,  by  the  same  law,  be  controlled 
and  regulated,  but  even  that  the  rights  themselves  may  be 

1  The  property  of  Chancellor  Livingston. 


APPENDIX.  511 

annulled  and  destroyed.  But  it  seems  to  have  been  forgotten 
that  the  right  of  a  patentee  is  not  derived  from  State  authority, 
but  has  its  foundation  in  the  Constitution  and  laws  of  the 
United  States.  As  the  State  prohibition  of  its  exercise,  in 
whatever  terms  expressed,  under  whatsoever  pretext  made, 
however  colored  and  disguised,  would,  in  truth,  be  a  violation 
of  the  right  itself,  I  am  forced  to  the  conclusion  that  such  a 
Legislative  act  would  be  wholly  void,  as  repugnant  to  that  law 
which  is  confessed  by  all  to  be  supreme  and  paramount. 

11.  I  consider  the  grant  to  Messrs.  Livingston  and  Fulton  as 
repugnant,  also,  to  that  clause  of  the  Constitution  of  the  United 
States  which  vests  in  Congress  the  power  "to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States  ; " 
which  power  I  regard  also  as  necessarily  exclusive.  It  has 
been  so  treated  by  every  department  of  the  Government,  and 
by  all  classes  of  citizens,  in  every  quarter  of  the  Union,  ever 
since  the  adoption  of  the  Federal  Constitution.  It  was  to  effect 
this  transfer  of  power  that  the  Constitution  owes  its  origin. 
This  was  the  express  motive  for  assembling  the  Federal  Con- 
vention. The  exclusive  grant  of  this  power  was  essentially 
requisite  to  give  to  our  shipping  its  nationality  and  protection  ; 
and  the  surrender  of  this  power  was,  in  this  State,  the  most 
formidable  obstacle  to  the  ratification  of  the  new  Constitution. 
It  possessed  the  best  harbor  upon  the  Atlantic  coast ;  the  fer- 
tility of  its  western  territory  was  known  ;  the  rapid  increase  of 
its  population  was  confidently  anticipated ;  the  tide  of  immigra- 
tion had  begun  to  flow  in  upon  it ;  and  the  consequent  accession 
of  wealth  and  power  promised  from  these  sources  afforded  the 
most  seductive  objects  to  the  ambition  of  its  statesmen  and 
politicians.  These  were  the  causes,  indeed,  which  combined  to 
delay  and  resist  the  adoption  of  the  Constitution  in  this  State, 
until  it  became  certain  that,  by  the  assent  of  "  nine  States,"  it 
would  go  into  immediate  operation  among  them,  while  this 
State  and  the  other  recusant  members  of  the  old  Confederacy 
would  thus  be  deprived  of  the  benefits  both  of  the  former 
compact,  and  of  the  Government  by  which  it  was  superseded. 


612  APPENDIX. 

It  remains  only  to  consider  in  what  manner  Mr.  Gibbons  may 
best  avail  himself  of  the  rights  conferred  by  his  patents  and 
coasting  license  under  the  Constitution  and  laws  of  the  United 
States.  My  advice  is,  that  he  send  his  boat  into  those  waters 
between  this  State  and  New  Jersey  which  are  claimed  as  lying 
within  the  territorial  boundary,  as  well  as  the  jurisdiction  of 
the  former,  without  confining  her  navigation  to  those  waters 
which,  though  admitted  to  be  within  the  limits  of  the  latter, 
yet  over  which  New  York  claims,  nevertheless,  exclusive  juris- 
diction. Nor  need  he  be  deterred  by  fear  of  having  his  boats 
seized  under  the  Act  of  1811,  authorizing  Messrs.  Livingston 
and  Fulton  immediately  to  seize  and  keep  possession  of  his 
property  before  condemnation,  and  without  trial ;  thus  giving 
them  the  benefit  of  an  execution  before  the  verdict  of  a  jury  or 
the  judgment  of  a  Court,  and  without  the  intervention  of  the 
sheriff;  for  I  hold  this  monstrous  provision  to  be  so  clearly 
repugnant  to  that  fundamental  law  which  man  derives  from  his 
Creator,  and  which  is  paramount  to  all  human  authority,  that 
no  judge  on  earth  will  venture  to  execute  it.^ 

W.  A.  DUER. 

Albany,  July  14,  1816. 


G.  p.  176. 
AN   ORDINANCE   FOR  THE    GOVERNMENT   OF   THE    TERRITORY 
OF     THE    UNITED      STATES     NORTHWEST     OF     THE    RIVER 
OHIO. 

Be  it  ordained  by  the  United  States  in  Congress  assembled, 
that  the  said  territory,  for  the  purposes  of  temporary  Govern- 
ment, be  one  District ;  subject,  however,  to  be  divided  into  two 
Districts,  as  future  circumstances  may,  in  the  opinion  of  Con- 
gress, make  it  expedient. 

1  The  application  of  the  State  Grantees  to  Chancellor  Kent  for  an 
order  of  seizure  of  Mr.  Gibbons's  boat,  under  this  statute,  was  denied, 
and  the  Common  Law  Injunction  only  was  granted.  See  the  case  of 
Gibbons  v.  Ogden,  10  Wheat.  446. 


APPENDIX.  513 

Be  it  ordained  hy  the  authority  aforesaid,  that  the  estates 
both  of  resident  and  non-resident  proprietors  in  the  said  Terri- 
tory dying  intestate,  shall  descend  to,  and  be  distributed  among 
their  children,  and  the  descendants  of  a  deceased  child,  in  equal 
parts ;  the  descendants  of  a  deceased  child  or  grandchild  to 
take  the  share  of  their  deceased  parent  in  equal  parts  among 
them  ;  and  where  there  shall  be  no  children  or  descendants, 
then  in  equal  parts  to  the  next  of  kin  in  equal  degree ;  and 
among  collaterals,  the  children  of  a  deceased  brother  or  sister 
of  the  intestate  shall  have  in  equal  parts  among  them  their 
deceased  parents'  share ;  and  there  shall  in  no  case  be  a  dis- 
tinction between  kindred  of  the  whole  and  half  blood  ;  saving 
in  all  cases  to  the  widow  of  the  intestate  her  third  part  of  the 
real  estate  for  life,  and  one  third  part  of  the  personal  estate  ; 
and  this  law  relative  to  descents  and  dower  shall  remain  in  full 
force  until  altered  by  the  Legislature  of  the  District.  And 
until  the  Governor  and  judges  shall  adopt  laws  as  hereinafter 
mentioned,  estates  in  the  said  territory  may  be  devised  or  be- 
queathed by  wills  in  writing,  signed  and  sealed  by  him  or  her 
in  whom  the  estate  may  be  (being  of  full  age)  and  attested  by 
three  witnesses  ;  and  real  estates  may  be  conveyed  by  lease  and 
release,  or  bargain  and  sale,  signed,  sealed,  and  delivered  by 
the  person,  being  of  full  age,  in  whom  the  estate  may  be,  and 
attested  by  two  witnesses,  provided  such  wills  be  duly  proved, 
and  such  conveyances  be  acknowledged,  or  the  execution  thereof 
duly  proved,  and  be  recorded  within  one  year  after  proper 
magistrates,  courts,  and  registers  shall  be  appointed  for  that 
purpose ;  and  personal  property  may  be  transferred  by  de- 
livery ;  saving,  however  to  the  French  and  Canadian  inhabi- 
tants, and  other  settlers,  of  the  Kaskaskies,  St.  Vincent's,  and 
the  neighboring  villages,  who  have  heretofore  professed  them- 
selves citizens  of  Virginia,  their  laws  and  customs  now  in  force 
among  them,  relative  to  the  descent  and  conveyance  of  property. 

Be  it  ordained  by  the  authority  aforesaid,  that  there  shall  be 
appointed  from  time  to  time,  by  Congress,  a  Governor,  whose 


614  APPENDIX. 

commission  shall  continue  in  force  for  the  term  of  three  years, 
unless  sooner  revoked  by  Congress  :  he  shall  reside  in  the 
district,  and  have  a  freehold  estate  therein  in  one  thousand 
acres  of  land,  while  in  the  exercise  of  his  office. 

There  shall  be  appointed  from  time  to  time,  by  Congress,  a 
Secretary,  whose  commission  shall  continue  in  force  for  four 
years,  unless  sooner  revoked ;  he  shall  reside  in  the  District, 
and  have  a  freehold  estate  therein  in  five  hundred  acres  of 
land,  while  in  the  exercise  of  his  office  ;  it  shall  be  his  duty  to 
keep  and  preserve  the  Acts  and  laws  passed  by  the  Legislature, 
and  the  public  records  of  the  District,  and  the  proceedings  of 
the  Governor  in  his  Executive  Department;  and  transmit  au- 
thentic copies  of  such  Acts  and  proceedings,  every  six  months, 
to  the  Secretary  of  Congress ;  there  shall  also  be  appointed  a 
Court,  to  consist  of  three  judges,  any  two  of  whom  to  form  a 
Court,  who  shall  have  a  Common  Law  jurisdiction,  and  reside 
in  the  District,  and  have  each  therein  a  freehold  estate  in  ftve 
hundred  acres  of  land,  while  in  the  exercise  of  their  offices ; 
and  their  commissions  shall  continue  in  force  during  good  be- 
haviour. 

The  Governor  and  judges,  or  a  majority  of  them,  shall  adopt 
and  publish  in  the  District  such  laws  of  the  original  States, 
criminal  and  civil,  as  may  be  necessary  and  best  suited  to  the 
circumstances  of  the  District,  and  report  them  to  Congress  from 
time  to  time  ;  which  laws  shall  be  in  force  in  the  District  until 
the  organization  of  the  General  Assembly  therein,  unless  dis- 
approved of  by  Congress ;  but  afterward  the  Legislature  shall 
have  authority  to  alter  them  as  they  shall  think  fit. 

The  Governor  for  the  time  being  shall  be  Commander-in- 
Chief  of  the  militia,  appoint  and  commission  all  officers  in  the 
same  below  the  rank  of  General  officers ;  all  General  officers 
shall  be  appointed  and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  General  Assembly,  the 
Governor  shall  appoint  such  magistrates  and  other  civil  officers, 
in  each  county  or  township,  as  he  shall  find  necessary  for  the 


APPENDIX.  515 

preservation  of  the  peace  and  good  order  in  the  same ;  after 
the  General  Assembly  shall  be  organized,  the  powers  and 
duties  of  magistrates  and  other  civil  officers  shall  be  regulated 
and  defined  by  the  said  Assembly  ;  but  all  magistrates  and 
other  civil  officers  not  herein  otherwise  directed  shall,  during 
the  continuance  of  this  tempoi-ary  Government,  be  appointed 
by  the  Governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be 
adopted  or  made  shall  have  force  in  all  parts  of  the  District, 
and  for  the  execution  of  process,  criminal  and  civil,  the  Gover- 
nor shall  make  proper  divisions  thereof;  and  he  shall  proceed 
from  time  to  time,  as  circumstances  may  require,  to  lay  out  the 
parts  of  the  District  in  which  the  Indian  titles  shall  have  been 
extinguished  into  counties  and  townships,  subject,  however,  to 
such  alterations  as  may  thereafter  be  made  by  the  Legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitants, 
of  full  age,  in  the  District,  upon  giving  proof  thereof  to  the 
Governor,  they  shall  receive  authority,  with  time  and  place  to 
elect  Representatives  from  their  counties  or  townships  to  repre- 
sent them  in  the  General  Assembly  ;  provided  that  for  every 
five  hundred  free  male  inhabitants,  there  shall  be  one  Represen- 
tative, and  so  on  progressively  with  the  number  of  free  male 
inhabitants  shall  the  right  of  representation  increase,  until  the 
number  of  Representatives  shall  amount  to  twenty-five ;  after 
which  the  number  and  proportion  of  Representatives  shall  be 
regulated  by  the  Legislature :  provided  that  no  person  be 
eligible  or  qualified  to  act  as  a  Representative  unless  he  shall 
have  been  a  citizen  of  one  of  the  United  States  three  years, 
and  be  a  resident  in  the  District,  or  unless  he  shall  have  resided 
in  the  District  three  years ;  and  in  either  case,  shall  likewise 
hold  in  his  own  right,  in  fee-simple,  two  hundred  acres  of  land 
within  the  same :  provided,  also,  that  a  freehold  in  fifty  acres  of 
land  in  the  District,  having  been  a  citizen  of  one  of  the  States, 
and  being  resident  in  the  District,  or  the  like  freehold,  and  two 
years'  residence  in  the  District,  shall  be  necessary  to  qualify  a 
man  as  an  elector  of  a  Representative. 


516  APPENDIX. 

The  Representatives  thus  elected  shall  serve  for  the  term  of 
two  years ;  and  in  case  of  the  death  of  a  Representative,  or 
removal  from  office,  the  Governor  shall  issue  a  writ  to  the 
county  or  township  for  which  he  was  a  member  to  elect  another 
in  his  stead,  to  serve  for  the  residue  of  the  terra. 

The  General  Assembly,  or  Legislature,  shall  consist  of  the 
Governor,  Legislative  Council,  and  a  House  of  Representatives. 
The  Legislative  Council  shall  consist  of  five  members,  to  con- 
tinue in  office  five  years,  unless  sooner  removed  by  Congress, 
any  three  of  whom  to  be  a  quorum  ;  and  the  members  of  the 
Council  shall  be  nominated  and  appointed  in  the  following 
manner,  to  wit :  As  soon  as  Representatives  shall  be  elected, 
the  Governor  shall  appoint  a  time  and  place  for  them  to  meet 
together,  and  when  met,  they  shall  nominate  ten  persons,  resi- 
dents in  the  District,  and  each  possessed  of  a  freehold  in  five 
hundred  acres  of  land,  and  return  their  names  to  Congress ; 
five  of  whom  Congress  shall  appoint  and  commission  to  serve 
as  aforesaid  ;  and  whenever  a  vacancy  shall  happen  in  the 
Council,  by  death  or  removal  from  office,  the  House  of  Repre- 
sentatives shall  nominate  two  persons,  qualified  as  aforesaid  for 
each  vacancy,  and  return  their  names  to  Congress,  one  of  whom 
Congress  shall  appoint  and  commission  for  the  residue  of  the 
term.  And  every  five  years,  four  months  at  least  before  the 
expiration  of  the  time  of  service  of  the  members  of  Council, 
the  said  House  shall  nominate  ten  persons,  qualified  as  afore- 
said, and  return  their  names  to  Congress ;  five  of  whom  Con- 
gress shall  appoint  and  commission  to  serve  as  members  of  the 
Council  five  years,  unless  sooner  removed.  And  the  Governor, 
Legislative  Council,  and  House  of  Representatives  shall  have 
authority  to  make  laws,  in  all  cases,  for  the  good  government 
of  the  District,  not  repugnant  to  the  principles  and  articles  in 
this  ordinance  established  and  declared.  And  all  bills  having 
passed  by  a  majority  in  the  House,  and  by  a  majority  in  the 
Council,  shall  be  referred  to  the  Governor  for  his  assent ;  but 
no  bill  or  Legislative  Act  whatever  shall  be  of  any  force  with- 


APPENDIX.  617 

out  his  assent.  The  Governor  shall  have  power  to  convene, 
prorogue,  and  dissolve  the  General  Assembly,  when  in  his 
opinion  it  shall  be  expedient. 

The  Governor,  Judges,  Legislative  Council,  Secretary,  and 
such  other  officers  as  Congress  shall  appoint  in  the  District, 
shall  take  an  oath  or  affirmation  of  fidelity,  and  of  office ;  the 
Governor  before  the  President  of  Congress,  and  all  other  offi- 
cers before  the  Governor.  As  soon  as  a  Legislature  shall  be 
formed  in  the  District,  the  Council  and  House,  assembled  in 
one  room,  shall  have  authority,  by  joint  ballot,  to  elect  a  dele- 
gate to  Congress,  who  shall  have  a  seat  in  Congress,  with  a 
right  of  debating,  but  not  of  voting,  during  this  temporary  Gov- 
ernment. 

And  for  extending  the  fundamental  principles  of  civil  and 
religious  liberty,  which  form  the  basis  whereon  these  republics, 
their  laws  and  constitutions  are  erected ;  to  fix  and  establish 
those  principles  as  the  basis  of  all  laws,  constitutions,  and  gov- 
ernments, which  forever  hereafter  shall  be  formed  in  the  said 
Territory ;  to  provide  also  for  the  establishment  of  States,  and 
permanent  Government  therein,  and  for  their  admission  to  a 
share  in  the  Federal  Councils,  on  an  equal  footing  with  the 
original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest : 

It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid, 
that  the  following  Articles  shall  be  considered  as  Articles  of 
compact  between  the  original  States,  and  the  people  and  States 
in  the  said  Territory,  and  forever  remain  unalterable,  unless  by 
common  consent,  to  wit : 

Article  L  No  person  demeaning  himself  in  a  peaceable  and 
orderly  manner,  shall  ever  be  molested  on  account  of  his  mode 
of  worship  or  religious  sentiments  in  the  said  Territory. 

Art.  II.  The  inhabitants  of  the  said  Territory  shall  always 

be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus,  and  of  a 

trial  by  Jury ;  of  a  proportionate  representation  of  the  people 

in  the  Legislature,  and  of  Judicial  proceedings  according  to  the 

44 


518  APPENDIX. 

course  of  the  Common  Law.  All  persons  shall  be  bailable, 
unless  for  capital  offences,  where  the  proof  shall  be  evident,  or 
the  presumption  great.  All  fines  shall  be  moderate,  and  no 
cruel  or  unusual  punishments  shall  be  inflicted.  No  man  shall 
be  deprived  of  his  liberty  or  property  but  by  the  judgment  of 
his  peers  or  the  law  of  the  land ;  and  should  the  public  exigen- 
cies make  it  necessary  for  the  common  presei'vation,  to  take  any 
person's  property,  or  to  demand  his  particular  services,  full 
compensation  shall  be  made  for  the  same.  And  in  the  just 
preservation  of  rights  and  property,  it  is  understood  and  de- 
clared that  no  law  ought  ever  to  be  made,  or  have  force  in  the 
said  Territory,  that  shall  in  any  manner  whatever  interfere 
with,  or  affect  private  contracts  or  engagements,  bond  Jide^  and 
without  fraud  previously  formed. 

Art.  III.  Religion,  morality,  and  knowledge  being  necessary 
to  good  government  and  the  happiness  of  mankind,  schools  and 
the  means  of  education  shall  forever  be  encouraged.  The 
utmost  good  faith  shall  always  be  observed  towards  the  Indians ; 
their  lands  and  property  shall  never  be  taken  from  them  with- 
out their  consent ;  and  in  their  property,  rights,  and  liberty, 
they  never  shall  be  invaded  or  disturbed,  unless  in  just  and 
lawful  wars  authorized  by  Congress  ;  but  laws  founded  in 
justice  and  humanity  shall  from  time  to  time  be  made,  for  pre- 
venting wrongs  being  done  to  them,  and  for  preserving  peace 
and  friendship  with  them. 

Art.  IV.  The  said  Territory,  and  the  States  which  may  be 
formed  therein,  shall  forever  remain  a  part  of  this  Confederacy 
of  the.  United  States  of  America,  subject  to  the  Articles  of 
Confederation,  and  to  such  alterations  therein  as  shall  be  con- 
stitutionally made,  and  to  all  the  Acts  and  ordinances  of  the 
United  States  in  Congress  assembled  conformable  thereto.  The 
inhabitants  and  settlers  in  the  said  Territory  shall  be  subject  to 
pay  a  part  of  the  Federal  debts,  contracted  or  to  be  contracted, 
and  a  proportional  part  of  the  expenses  of  Government,  to  be 
apportioned  on  them  by  Congress,  according  to  the  same  com- 


APPENDIX.  619 

mon  rule  and  measure  by  wliich  apportionments  thereof  shall 
be  made  on  the  other  States  ;  and  the  taxes  for  paying  their 
proportion  shall  be  laid  and  levied  by  the  authority  and  direc- 
tion of  the  Legislatures  of  the  District  or  Districts  or  new 
States,  as  in  the  original  States,  within  the  time  agreed  upon 
by  the  United  States  in  Congress  assembled.  The  Legislatures 
of  those  Districts  or  new  States  shall  never  interfere  with  the 
primary  disposal  of  the  soil  by  the  United  States  in  Congress 
assembled,  nor  with  any  regulations  Congress  may  find  neces- 
sary for  securing  the  title  in  such  soil  to  the  bond  fide  pur- 
chasers. No  tax  shall  be  imposed  on  lands  the  property  of  the 
United  States ;  and  in  no  case  shall  non-resident  proprietors  bo 
taxed  higher  than  residents.  The  navigable  waters  leading 
into  the  Mississippi  and  St.  Lawrence,  and  the  carrying  places 
between  the  same,  shall  be  common  highways,  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  Territory  as  to  the  citizens 
of  the  United  States,  and  those  of  any  other  States  that  may 
be  admitted  into  the  Confederacy,  without  any  tax,  impost,  or 
duty  therefor. 

Art.  Y.  There  shall  be  formed  in  the  said  Territory  not  less 
than  three,  nor  more  than  five  States ;  and  the  boundaries  of 
the  States,  as  soon  as  Virginia  shall  alter  her  Act  of  cession, 
and  consent  to  the  same,  shall  become  fixed  and  established  as 
follows,  to  wit :  The  western  State  in  the  said  Territory  shall 
be  bounded  by  the  Mississippi,  the  Ohio,  and  "Wabash  rivers  ; 
a  direct  line  drawn  from  the  "Wabash  and  Post  Vincent's  due 
north  to  the  territorial  line  between  the  United  States  and 
Canada ;  and  by  the  said  territorial  line  to  the  Lake  of  the 
"Woods  and  Mississippi.  The  middle  State  shall  be  bounded 
by  the  said  direct  line,  the  "Wabash  from  Post  Vincent's  to 
the  Ohio  ;  by  the  Ohio,  by  a  direct  line  drawn  due  north  from 
the  mouth  of  the  Great  Miami  to  the  said  territorial  line,  and 
by  the  said  territorial  line.  The  eastern  State  shall  be  bounded 
by  the  last-mentioned  District  line,  the  Ohio,  Pennsylvania,  and 
the  said  territorial  line :  Provided,  however,  and  it  is  further 


520  APPENDIX. 

understood  and  declared,  that  the  boundaries  of  these  three 
States  shall  be  subject  so  far  to  be  altered,  that  if  Congress 
shall  hereafter  find  it  expedient,  they  shall  have  authority  to 
form  one  or  two  States  in  that  part  of  the  said  Territory  which 
lies  north  of  an  east  and  west  line  drawn  through  the  southerly 
bend  or  extreme  of  Lake  Michigan.  And  whenever  any  of 
the  said  States  shall  have  sixty  thousand  free  inhabitants  therein, 
such  State  shall  be  admitted,  by  its  delegates,  into  the  Congress 
of  the  United  States,  on  an  equal  footing  with  the  original 
States,  in  all  respects  whatever,  and  shall  be  at  liberty  to  form 
a  permanent  Constitution  and  State  Government  :  Provided 
the  Constitution  and  Government  so  to  be  formed  shall  be 
republican,  and  in  conformity  to  the  principles  contained  in 
these  Articles  ;  and  so  far  as  it  can  be  consistent  with  the 
general  interest  of  the  Confederacy,  such  admission  shall  be 
allowed  at  an  earlier  period,  and  when  there  may  be  a  less 
number  of  free  inhabitants  in  the  State  than  sixty  thousand. 

Art.  VI.  There  shall  be  neither  slavery  nor  involuntary 
servitude  in  the  said  Territory,  otherwise  than  in  punishment 
of  crimes,  whereof  the  party  shall  have  been  duly  convicted  : 
Provided,  always,  that  any  person  escaping  into  the  same,  from 
whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the 
original  States,  such  fugitive  may  be  lawfully  reclaimed,  and 
conveyed  to  the  person  claiming  his  or  her  labor  or  service  as 
aforesaid. 

Done  by  the  United  States,  in  Congress  assembled,  the 
thirteenth  day  of  July,  in  the  year  of  our  Lord  one  thou- 
sand seven  hundred  and  eighty-seven,  and  of  their  sov- 
ereignty and  independence  the  twelfth. 

WILLIAM   GRAYSON,  Chairman, 
Charles  Thomson,  Secretary. 


APPENDIX.  521 

H. 
VIRGINIA  RESOLUTIONS  OF  1798, 

pronouncing  the  Alien  and  Sedition  Laws  unconstitutional,  and  defin- 
ing the  rights  of  the  States.     Drawn  by  James  Madison. 

In  the  Virginia  House  of  Delegates,  Friday,  Dec.  21,  1798. 

Resolved,  That  the  General  Assembly  of  Virginia,  doth  un- 
equivocally express  a  firm  resolution  to  maintain  and  defend  the 
Constitution  of  the  United  States,  and  the  Constitution  of  this 
State  against  every  aggression,  either  foreign  or  domestic ;  and 
that  they  will  support  the  Government  of  the  United  States  in 
all  measures  warranted  by  the  former. 

That  this  Assembly  most  solemnly  declares  a  warm  attach- 
ment to  the  Union  of  the  States,  to  maintain  which  it  pledges 
its  powers  ;  and  that,  for  this  end,  it  is  their  duty  to  watch  over 
and  oppose  every  infraction  of  those  principles  which  constitute 
the  only  basis  of  that  union,  because  a  faithful  observance  of 
them  can  alone  secure  its  existence  and  the  public  happiness. 

That  this  Assembly  doth  explicitly  and  peremptorily  declare, 
that  it  views  the  powers  of  the  Federal  Government,  as  result- 
ing from  the  compact  to  which  the  States  are  parties,  as  limited 
by  the  plain  sense  and  intention  of  the  instrument  constituting 
that  compact,  as  no  further  valid  than  they  are  authorized  by 
the  grants  enumerated  in  that  compact ;  and  that  in  case  of  a 
deliberate,  palpable,  and  dangerous  exercise  of  other  powers, 
not  granted  by  the  said  compact,  the  States,  who  are  parties 
thereto,  have  the  right,  and  are  in  duty  bound,  to  interpose  for 
arresting  the  progress  of  the  evil,  and  for  maintaining  within 
their  respective  limits,  the  authorities,  rights,  and  liberties  apper- 
taining to  them. 

That  the  General  Assembly  deth  also  express  its  deep  regret, 
that  a  spirit  has,  in  sundry  instances,  been  manifested  by  the 
Federal  Government,  to  enlarge  its  powers  by  forced  construc- 
tions of  the  constitutional  charter  which  defines  them ;  and,  that 
44* 


522  APPENDIX. 

indications  have  appeared  of  a  design  to  expound  cei'tain  gen- 
eral phrases,  (which,  having  been  copied  from  the  very  limited 
grant  of  powers  in  the  former  Articles  of  Confederation,  were 
the  less  liable  to  be  misconstrued,)  so  as  to  destroy  the  meaning 
and  effect  of  the  particular  enumeration  which  necessarily  ex- 
plains, and  limits  the  general  phrases,  and  so  as  to  consolidate 
the  States  by  degrees,  into  one  sovereignty,  the  obvious  tendency 
and  inevitable  result  of  which  would  be,  to  transform  the  pres- 
ent republican  system  of  the  United  States  into  an  absolute  or 
at  best  a  mixed  monarchy. 

That  the  General  Assembly  doth  particularly  protest  against 
the  palpable  and  alarming  infractions  of  the  Constitution  in  the 
two  late  cases  of  the  "  Alien  and  Sedition  Acts,"  passed  at  the 
last  session  of  Congress ;  the  first  of  which  exercises  a  power 
nowhere  delegated  to  the  Federal  Government,  and  which,  by 
uniting  Legislative  and  Judicial  powers  to  those  of  Executive, 
subverts  the  general  principles  of  free  government,  as  well  as 
the  particular  organization  and  positive  provisions  of  the  Fed- 
eral Constitution ;  and  the  other  of  which  Acts  exercises,  in 
like  manner,  a  power  not  delegated  by  the  Constitution,  but  on 
the  contrary,  expressly  and  positively  forbidden  by  one  of  the 
amendments  thereto;  a  power  which,  more  than  any  other, 
ought  to  produce  universal  alarm,  because  it  is  levelled  against 
the  right  of  freely  examining  public  characters  and  measures, 
and  of  free  communication  among  the  people  thereon,  which  has 
ever  been  justly  deemed  the  only  effectual  guardian  of  every 
other  right. 

That  this  State  having  by  its  convention,  which  ratified  the 
Federal  Constitution,  expressly  declared,  that  among  other 
essential  rights,  "  the  liberty  of  conscience  and  the  press  cannot 
be  cancelled,  abridged,  restrained,  or  modified  by  any  authority 
of  the  United  States,"  and  from  its  extreme  anxiety  to  guard 
these  rights  from  every  possible  attack  of  sophistry  and  am- 
bition, having,  with  other  States,  recommended  an  amendment 
for  that  purpose,  which  amendment  was  in  due  time  annexed 


APPENDIX.  523 

to  the  Constitution,  it  would  mark  a  reproachful  inconsistency 
and  criminal  degeneracy,  if  an  indifference  were  now  shown 
to  the  most  palpable  violation  of  one  of  the  rights  thus  declared 
and  secured,  and  to  the  establishment  of  a  precedent  which 
may  be  fatal  to  the  other. 

That  the  good  people  of  this  Commonwealth,  having  ever  felt, 
and  continuing  to  feel  the  most  sincere  affection  for  their  brethren 
of  the  other  States ;  the  truest  anxiety  for  establishing  and 
perpetuating  the  union  of  all ;  and  the  most  scrupulous  fidelity 
to  that  Constitution,  which  is  the  pledge  of  mutual  friendship, 
and  the  instrument  of  mutual  happiness  ;  the  General  Assembly 
doth  solemnly  appeal  to  the  like  dispositions  in  the  other  States, 
in  confidence,  that  they  will  concur  with  this  Commonwealth  in 
declaring,  as  it  does  hereby  declare,  that  the  Acts  aforesaid  are 
unconstitutional,  and  that  the  necessary  and  proper  measures 
will  be  taken  by  each  for  cooperating  with  this  State,  in  main- 
taining unimpaired  the  authorities,  rights,  and  liberties,  re- 
served to  the  States  respectively,  or  to  the  people. 

That  the  Governor  be  desired  to  transmit  a  copy  of  the 
foregoing  resolutions  to  the  Executive  authority  of  each  of  the 
other  States,  with  a  request  that  the  same  may  be  communicated 
to  the  Legislature  thereof;  and  that  a  copy  be  furnished  to  each 
of  the  Senators  and  Representatives  representing  this  State  in 
the  Congress  of  the  United  States. 

Attest,  John  Stewart. 

1798,  December  24     Agreed  to  by  the  Senate. 

H.  Brooke. 

A  true  copy  from  the  original  deposited  in  the  office  of  the 
General  Assembly.  John  Stewart, 

Keeper  of  RoUs. 


524  APPENDIX. 

KENTUCKY  RESOLUTIONS   OF  1798   AND   1799. 
THE    ORIGINAL    DRAFT    PREPARED    BY    THOMAS    JEFFERSOX. 

The  following  Resolutions  passed  the  House  of  Representatives  of  Ken- 
tucky Nov.  10,  1798.  On  the  passage  of  the  first  Resolution,  one 
dissentient;  2c?,  Sc?,  4<A,  bth,  6th,  7th,  8th,  two  dissentients ;  9th,  three 
dissentients. 

I.  Resolved,  That  the  several  States  coraposing  the  United 
States  of  America,  are  not  united  on  the  principle  of  unlimited 
submission  to  their  General  Government ;  but  that  by  compact 
under  the  style  and  title  of  a  Constitution  for  the  United  States, 
and  of  amendments  thereto,  they  constituted  a  General  Govern- 
ment for  special  purposes,  delegated  to  that  Government  certain 
definite  powers,  reserving,  each  State  to  itself,  the  residuary 
mass  of  right  to  their  own  self-government ;  and  that,  whensoever 
the  General  Government  assumes  undelegated  powers,  its  acts 
are  unauthoritative,  void,  and  of  no  force  ;  that  to  this  compact 
each  State  acceded  as  a  State,  and  is  an  integral  party ;  that 
this  Government,  created  by  this  compact,  was  not  made  the 
exclusive  or  final  judge  of  the  extent  of  the  powers  delegated  to 
itself;  since  that  would  have  made  its  discretion,  and  not  the 
Constitution,  the  measure  of  its  powers  ;  but  that  as  in  all  other 
cases  of  compact,  among  parties  having  no  common  judge,  each 
party  has  an  equal  right  to  judge  for  itself,  as  well  of  infractions 
as  of  the  mode  and  measure  of  redress. 

II.  Resolved,  That  the  Constitution  of  the  United  States 
having  delegated  to  Congress  a  power  to  punish  treason,  coun- 
terfeiting the  securities  and  current  coin  of  the  United  States, 
piracies  and  felonies  committed  on  the  high  seas,  and  ofiences 
against  the  laws  of  nations,  and  no  other  crimes  whatever,  and 
it  being  true,  as  a  general  principle,  and  one  of  the  amendments 
to  the  Constitution  having  also  declared,  "  that  the  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  prohib- 
ited by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people,"  therefore,  also,  the  same  Act  of  Congress, 


APPENDIX.  525 

passed  on  the  14th  day  of  July,  1798,  and  entitled,  "  An  Act  in 
addition  to  the  Act  entitled  an  Act  for  the  punishment  of  cer- 
tain crimes  against  the  United  States,"  as  also  the  Act  passed 
by  them  on  the  27th  day  of  June,  1798,  entitled  "An  Act  to 
punish  frauds  committed  on  the  Bank  of  the  United  States," 
(and  all  other  their  Acts  which  assume  to  create,  define,  or 
punish  crimes  other  than  those  enumerated  in  the  Constitution,) 
are  altogether  void  and  of  no  force,  and  that  the  power  to  create, 
define,  and  punish  such  other  crimes  is  reserved,  and  of  right 
appertains  solely  and  exclusively  to  the  respective  States,  each 
within  its  own  territory. 

III.  Resolved,  That  it  is  true,  as  a  general  principle,  and  is 
also  expressly  declared  by  one  of  the  amendments  to  the  Con- 
stitution, that  "  the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively  or  to  the  people  ;  "  and,  that 
no  power  over  the  freedom  of  religion,  freedom  of  speech,  or 
freedom  of  the  press,  being  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  all  lawful 
powers  respecting  the  same  did  of  right  remain,  and  were 
reserved  to  the  States  or  to  the  people  ;  that  thus  was  manifested 
their  determination  to  retain  to  themselves  the  right  of  judging 
how  far  the  licentiousness  of  speech  and  of  the  press  may  be 
abridged  without  lessening  their  useful  freedom,  and  how  far 
those  abuses  which  cannot  be  separated  from  their  use,  should 
be  tolerated  rather  than  the  use  be  destroyed  ;  and  thus  also 
they  guarded  against  all  abridgment  by  the  United  States  of 
the  freedom  of  religious  principles  and  exercises,  and  retained 
to  themselves  the  right  of  protecting  the  same,  as  this,  stated  by 
a  law  passed  on  the  general  demand  of  its  citizens,  had  already 
protected  them  from  all  human  restraint  or  interference  ;  and 
that,  in  addition  to  this  general  principle  and  express  declara- 
tion, another  and  more  special  provision  has  been  made  by  one 
of  the  amendments  to  the  Constitution,  which  expressly  declares 
that  "  Congress  shall  make  no  laws  respecting  an  establishment 


526  APPENDIX. 

of  religion,  or  prohibiting  the  free  exercise  thereof,  or  abridging 
the  freedom  of  speech,  or  of  the  press,"  thereby  guarding  in 
the  same  sentence,  and  under  the  same  words,  the  freedom  of 
religion,  of  speech,  and  of  the  press,  insomuch  that  whatever 
violates  either,  throws  down  the  sanctuary  which  covers  the 
others,  and  that  libels,  falsehood,  and  defamation,  equally  with 
heresy  and  false  religion,  are  withheld  from  the  cognizance  of 
Federal  tribunals.  That  therefore  the  Act  of  the  Congress  of 
the  United  States,  passed  on  the  14th  of  July,  1798,  entitled 
"  An  Act  in  addition  to  the  Act  entitled  an  Act  for  the  punish- 
ment of  certain  crimes  against  the  United  States,"  which  does 
abridge  the  freedom  of  the  press,  is  not  law,  but  is  altogether 
void  and  of  no  force. 

IV.  Resolved,  That  alien  friends  are  under  the  jurisdiction 
and  protection  of  the  laws  of  the  State  wherein  they  are  ;  that 
no  power  over  them  has  been  delegated  to  the  United  States, 
nor  prohibited  to  the  individual  States  distinct  from  their  power 
over  citizens ;  and  it  being  true,  as  a  general  principle,  and  one 
of  the  amendments  to  the  Constitution  having  also  declared, 
that  "  the  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people,"  the  Act  of  the  Congress 
of  the  United  States,  passed  the  22d  day  of  June,  1798,  enti- 
tled, "An  Act  concerning  aliens,"  which  assumes  power  over 
alien  friends  not  delegated  by  the  Constitution,  is  not  law,  but  is 
altogether  void  and  of  no  force. 

V.  Resolved,  That  in  addition  to  the  general  principle  as 
well  as  the  express  declaration,  that  powers  not  delegated  are 
reserved,  another  and  more  special  provision  inferred  in  the 
Constitution,  from  abundant  caution  has  declared,  "  that  the 
migration  or  importation  of  such  persons  as  any  of  the  States 
now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1808."  That  this  Common- 
wealth does  admit  the  migration  of  alien  friends  described  as 
the  subject  of  the  said  Act  concerning  aliens  ;  that  a  provision 


APPENDIX.  627 

against  prohibiting  their  migration  is  a  provision  against  all  acts 
equivalent  thereto,  or  it  would  be  nugatory ;  that  to  remove 
them  when  migrated  is  equivalent  to  a  prohibition  of  their 
migration,  and  is,  therefore,  contrary  to  the  said  provision  of 
the  Constitution  and  void. 

VI.  Resolved,  That  the  imprisonment  of  a  person  under  the 
protection  of  the  laws  of  this  Commonwealth  on  his  failure  to 
obey  the  simple  order  of  the  President,  to  depart  out  of  the 
United  States,  as  is  undertaken  by  the  said  Act,  entitled  "  An 
Act  concerning  Aliens,"  is  contrary  to  the  Constitution,  one 
amendment  in  which  has  provided,  that  "no  person  shall  be 
deprived  of  liberty  without  due  process  of  law,"  and,  that  an- 
other having  provided,  "  that  in  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  public  trial  by  an  impartial 
jury,  to  be  informed  as  to  the  nature  and  cause  of  the  accusa- 
tion, to  be  confronted  with  the  witnesses  against  him,  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor,  and  to 
have  assistance  of  counsel  for  his  defence,"  the  same  Act  under- 
taking to  authorize  the  President  to  remove  a  person  out  of 
the  United  States  who  is  under  the  protection  of  the  law,  on 
his  own  suspicion,  without  jury,  without  public  trial ;  without 
confrontation  of  the  witnesses  against  him,  without  having 
witnesses  in  his  favor,  without  defence,  without  counsel,  is  con- 
trary to  these  provisions  also  of  the  Constitution,  is  therefore 
not  law,  but  utterly  void  and  of  no  force. 

That  transferring  the  power  of  judging  any  person  who  is 
under  the  protection  of  the  laws,  from  the  Courts  to  the  Presi- 
dent of  the  United  States,  as  is  undertaken  by  the  same  Act 
concerning  aliens,  is  against  the  article  of  the  Constitution 
which  provides  that  "  the  Judicial  power  of  the  United  States 
shall  be  vested  in  the  Courts,  the  judges  of  which  shall  hold 
their  office  during  good  behavior,"  and  that  the  said  Act  is  void 
for  that  reason  also ;  and  it  is  further  to  be  noted  that  this 
transfer  of  Judiciary  power  is  to  that  magistrate  of  the  General 
Government  who  already  possesses  all  the  Executive,  and  a 
qualified  negative  in  all  the  Legislative  powers. 


528  APPENDIX. 

VII.  Resolved,  That  the  construction  applied  by  the  General 
Government  (as  is  evident  by  sundry  of  their  proceedings)  to 
those  parts  of  the  Constitution  of  the  United  States  which 
delegate  to  Congress  power  to  lay  and  collect  taxes,  duties, 
imposts,  excises ;  to  pay  the  debts  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States,  and  to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  powers  vested  by  the  Constitution  in  the  Govern- 
ment of  the  United  States,  or  any  department  thereof,  goes  to 
the  destruction  of  all  the  limits  prescribed  to  their  power  by  the 
Constitution  —  That  words  meant  by  that  instrument  to  be 
subsidiary  only  to  the  execution  of  the  limited  powers,  ought 
not  to  be  so  construed  as  themselves  to  give  unlimited  powers, 
nor  a  part  so  to  be  taken  as  to  destroy  the  whole  residue  of 
the  instrument :  That  the  proceedings  of  the  General  Govern- 
ment under  color  of  those  articles,  will  be  a  fit  and  necessary 
subject  for  revisal  and  correction  at  a  time  of  greater  tran- 
quillity, while  those  specified  in  the  preceding  resolutions  call 
for  immediate  redress. 

VIII.  Resolved,  That  the  preceding  resolutions  be  trans- 
mitted to  the  Senators  and  Representatives  in  Congress  from 
this  Commonwealth,  who  are  enjoined  to  present  the  same  to 
their  respective  Houses,  and  to  use  their  best  endeavors  to  pro- 
cure at  the  next  session  of  Congress,  a  repeal  of  the  aforesaid 
unconstitutional  and  obnoxious  Acts. 

IX.  Resolved,  lastly.  That  the  Governor  of  this  Common- 
wealth be,  and  is  hereby  authorized  and  requested  to  commu- 
nicate the  preceding  resolutions  to  the  Legislatures  of  the  several 
States,  to  assure  them  that  this  Commonwealth  considers  union 
for  special  national  purposes,  and  particularly  for  those  specified 
in  their  late  Federal  compact,  to  be  friendly  to  the  peace,  hap- 
piness, and  prosperity  of  all  the  States — that  faithful  to  that 
compact,  according  to  the  plain  intent  and  meaning  in  which  it 
was  understood  and  acceded  to  by  the  several  parties,  it  is 
sincerely  anxious  for  its  preservation ;  that  it  does  also  believe 
that,  to  take  from  the  States  all  the  powers  of  self-government, 


APPENDIX.  529 

and  transfer  them  to  a  general  and  consolidated  Government, 
without  regard  to  the  special  delegations  and  reservations 
solemnly  agreed  to  in  that  compact,  is  not  for  the  peace,  happi- 
ness, or  prosperity  of  these  States  :  And  that,  therefore,  this 
Commonwealth  is  determined,  as  it  doubts  not  its  co-States  are, 
to  submit  to  undelegated  and  consequently  unlimited  powers  in 
no  man  or  body  of  men  on  earth  ;  that  if  the  Acts  before 
specified  should  stand,  these  conclusions  would  flow  from  them  ; 
that  the  General  Government  may  place  any  act  they  think 
proper  on  the  list  of  crimes  and  punish  it  themselves  whether 
enumerated  or  not  enumerated  by  the  Constitution  as  cogniz- 
able by  them  ;  that  they  may  transfer  its  cognizance  to  the 
President  or  any  other  person,  who  may  himself  be  the  accuser, 
counsel,  judge,  and  jury,  whose  suspicions  may  be  the  evidence, 
his  order  the  sentence,  his  officer  the  executioner,  and  his  breast 
the  sole  record  of  the  transaction  ;  that  a  very  numerous  and 
valuable  description  of  the  inhabitants  of  these  States,  being 
by  this  precedent  reduced  as  outlaws  to  the  absolute  dominion 
of  one  man,  and  the  barriers  of  the  Constitution  thus  swept 
from  us  all ;  no  rampart  now  remains  against  the  passions  and 
the  power  of  a  majority  of  Congress,  to  protect  from  a  like 
exportation  or  other  grievous  punishment  the  minority  of  the 
same  body,  the  Legislatui'es,  Judges,  Governors,  and  Counsel- 
lors of  the  States,  nor  their  other  peaceable  inhabitants  who 
may  venture  to  reclaim  the  constitutional  rights  and  liberties  of 
the  States  and  people,  or  who,  for  other  causes,  good  or  bad, 
may  be  obnoxious  to  the  view  or  marked  by  the  suspicions  of 
the  President,  or  to  be  thought  dangerous  to  his  or  their  elec- 
tions or  other  interests,  public  or  personal ;  that  the  friendless 
alien  has  been  selected  as  the  safest  subject  of  a  first  experi- 
ment ;  but  the  citizen  will  soon  follow,  or  rather  has  already 
followed,  for  already  has  a  sedition  Act  marked  him  as  a  prey : 
That  these  and  successive  Acts  of  the  same  chai'acter,  unless 
arrested  on  the  threshold,  may  tend  to  drive  these  States  into 
revolution  and  blood,  and  will  furnish  new  calumnies  against 
45 


530  APPENDIX. 

republican  governments,  and  new  pretexts  for  those  who  wish 
it  to  be  believed  that  man  cannot  be  governed  but  by  a  rod  of 
iron  ;  that  it  would  be  a  dangerous  delusion  were  a  confidence 
in  the  men  of  our  choice  to  silence  our  fears  for  the  safety  of 
our  rights  ;  that  confidence  is  everywhere  the  parent  of  despot- 
ism :  free  government  is  founded  in  jealousy  and  not  in  confi- 
dence ;  it  is  jealousy  and  not  confidence  which  prescribes  limited 
Constitutions  to  bind  down  those  whom  we  are  obliged  to  trust 
with  power ;  that  our  Constitution  has  accordingly  fixed  the 
limits  to  which  and  no  further  our  confidence  may  go ;  and  let 
the  honest  advocate  of  confidence  read  the  alien  and  sedition 
Acts,  and  say  if  the  Constitution  has  not  been  wise  in  fixing 
limits  to  the  Government  it  created,  and  whether  we  should  be 
wise  in  destroying  those  limits  ?  Let  him  say  what  the  Gov- 
ernment is,  if  it  be  not  a  tyranny  which  the  men  of  our  choice 
have  conferred  on  the  President,  and  the  President  of  our 
choice  has  assented  to  and  accepted  over  the  friendly  strangers, 
to  whom  the  mild  spirit  of  our  country  and  its  laws  had  pledged 
hospitality  and  protection  ;  that  the  men  of  our  choice  have 
more  respected  the  bare  suspicions  of  the  President  than  the 
solid  rights  of  innocence,  the  claims  of  justification,  the  sacred 
force  of  truth,  and  the  forms  and  substance  of  law  and  justice. 
In  questions  of  power,  then,  let  no  more  be  said  of  confidence 
in  man,  but  bind  him  down  from  mischief  by  the  chains  of  the 
Constitution.  That  this  Commonwealth  does  therefore  call  on 
its  co-States  for  an  expression  of  their  sentiments  on  the  Acts 
concerning  aliens,  and  for  the  punishment  of  certain  crimes 
hereinbefore  specified,  plainly  declaring  whether  these  Acts  are 
or  are  not  authorized  by  the  Federal  compact.  And  it  doubts 
not  that  their  sense  will  be  so  announced  as  to  prove  their 
attachment  to  limited  government,  whether  general  or  particular, 
and  that  the  rights  and  liberties  of  their  co-estates  will  be  ex- 
posed to  no  dangers  by  remaining  embarked  on  a  common 
bottom  with  their  own  :  But  they  will  concur  with  this  Com- 
monwealth in  considering  the  said  Acts  as  so  palpably  against 


APPENDIX.  531 

the  Constitution  as  to  amount  to  an  undisguised  declaration,  that 
the  compact  is  not  meant  to  be  the  measure  of  the  powers  of 
the  General  Government,  but  that  it  will  proceed  in  the  exer- 
cise over  these  States  of  all  powers  whatsoever.  That  they 
will  view  this  as  seizing  the  rights  of  the  States  and  consolidat- 
ing them  in  the  hands  of  the  General  Government,  with  a 
power  assumed  to  bind  the  States  (not  merely  in  cases  made 
Federal)  but  in  all  cases  whatsoever,  by  laws  made,  not  with 
their  consent,  but  by  others  against  their  consent ;  that  this 
would  be  to  surrender  the  form  of  government  we  have  chosen, 
and  live  under  one  deriving  its  powers  from  its  own  will,  and 
not  from  our  authority ;  and  that  the  co-States  recurring  to  their 
natural  rights  in  cases  not  made  Federal,  will  concur  in  declar- 
ing these  void  and  of  no  force,  and  will  each  unite  with  this 
Commonwealth  in  requesting  their  repeal  at  the  next  session  of 
Congress. 

EDMUND  BULLOCK,  S.  H.  R. 
JOHN  CAMPBELL,  S.  S.  P.  T. 

Passed  the  House  of  Representatives,  Nov.  10,  1798. 

Attest,  Thos.  Todd,  C.  H.  R. 

In  Senate,  Nov.  13,  1798  —  Unanimously  concurred  in. 
Attest,  B.  Thurston,  C.  S. 

Approved,  Nov.  19th,  1798. 

JAMES    GARRARD,  Governor  of  Kentucky. 
By  the  Governor  :  Harey  Toulman,  Sec'y  of  State. 


INDEX. 


Page 
Admiralty  Jurisdiction. 

See  District  Courts,  Judi- 
cial Power,  &c. 

Admission  of  States. 
Power  of  admitting  new  States    336 
Construction  given  to  it    .         .  344 

Aliens. 
Who  so  termed  .  .  .  303 
Inducements  for  them  to  be- 
come citizens  .  .  .  304 
Mode  prescribed  .  .  .  304 
Rights  acquired  thereby  .  .  305 
See  Naturalization. 

Allegiance. 
Nature  of  that  due  by  citizens 
of  the  United  States      .         .  302 

Ambassadors. 
By  whom  appointed  .         .101 

In  what  courts  they  may  sue  and 

be  sued  .         .         •         .136 

Power  of  sending  and  receiving  227 
Infringements   on   their  rights, 

how  punishable     .         .         .  245 

Amendment  of  Constitution. 
.  342 
.  343 
.  343 
.  343 
.  344 


Necessity  of  such  power 
Mode  of  exercising  it 
Kestrictions  upon  it . 
Amendments  adopted 
Their  nature  and  design 


Effect  and  construction  of  one    345 

Appeals. 
See    Judicial    Power,    Su- 
preme Court,  &c. 

Appointments. 

Power  of,  where  vested     .  .101 

Vacancies,  how  supplied  .  .103 

What  vacancies  intended  .  .  103 

Arbiter. 
See    Judicial    Power,    Su- 
preme Court,  &c. 

Armt  and  Navy. 
Commander-in-chief  of  .  .98 
Power  of  raising  and  equipping  196 
Necessity  and  extent  of  power  197 
Restrictions  on  the  States  re- 
lating to  them  .  .  .197 
upon  Congress    .  200 

Arsenals  and  Forts. 
See  Local  Jurisdiction. 

Arts  (useful). 
See  Science. 

Attainder. 
See  Bills  of  Attainder. 

Authors  and  Invkntoks. 

See  Science. 


45 


634 


INDEX. 


Page 
Auxiliary  Powers. 

Power  to  make  laws  "  necessary 
and  proper  "  to  execute  other 

powers 389 

Foundation  and  meaning  of  it  389 
Judicial  construction  of  it  .  396 
Implied  powers,  how  delegated  398 
See  Powers  of  Government. 

Bank. 

See  Corporations. 

Bankruptcy. 
Power  to  establish  uniform  sys- 
tem         306 

Why  vested  in  National  Gov- 
ernment        ....  307 
Object  of  bankrupt  laws   .         .  307 
How  distinguished  from  insol- 
vent laws       ....  307 
Bankruptcy  defined    .         .         .  307 
To  what  persons  confined          .  307 
Nature  of  power  relative  to  it  .  308 
Power  retained  by  States  .         .  309 
State    laws    cannot    discharge 
from  contracts,  except  in  cer- 
tain cases       .         .         .         .310 
Why  no  uniform  system  now  in 
force 311 

Bills  of  Attainder. 

Prohibited  to  States  .  .  3.53 

Definitions  of    .         .         .  .  354 

To  what  cases  confined     .  .  354 

Bills  op  Credit. 
Their  issue  prohibited  to  States  349 
lieasons  therefor       .         .         .  349 
Judicial     construction    of    the 
power  of  Congress  in  relation 
to  them  ....  351 

Borrowing  Money. 
Power  of,  where  vested     .         .  225 
How  conferred  ....  225 
Extent  and  construction  .        .  226 

Captures. 
Rules  concerning      .        .        .194 
Power  of   Congress    to   make 

them 194 

Nature  and  extent  of  the  power  194 
Judicial  construction  of  it        .195 


Circuit  Courts. 
Organization  and  sessions 
Legislative  regulations  of  their 

proceedings   . 
Original  and  exclusive  jurisdic 

tion       .... 
In  regard  to  crimes  and  off"ences 
Original  and  concurrent  juris 

diction 

In  civil  suits 

Jurisdiction  as  to  copyrights  and 

patents  .... 
In   cases  where  United  States 

are  parties     . 
Appellate  jurisdiction 
In  what  sense  "Inferior Courts' 
Proceedings,  how   to  be  inter 

preted     .... 


160 

161 

162 
162 

163 
163 

164 

165 
165 
167 

167 


Citizens. 
Who  are  citizens  of  the  United 

States 300 

Who  native  citizens  .         .         .301 
Persons  born  within  the  United 

States,  who  are  not  citizens  .  301 
Persons  born  abroad,  who  are  .  304 
See     Aliens,     Allegiance, 

Naturalization,  &c. 

'  Coasting  License. 
See  Commerce. 

Coin  and  Coining. 
See  Money,  Powers  of  Gov- 
ernment, &c. 

Commerce. 
Power  of  regulating  it  with  for- 
eign nations  ....  245 
Where  and  how  vested     .        .  246 
Its  nature  and  necessity    .         .  246 
To  what  it  extends  .         .         .  247 
With  what  exception        .         .  247 
Judicial  construction  of  it         .  247 
How  far  it  comprehends  navi- 
gation within  a  State     .         .  248 
To  what  vessels  it  extends        .  253 
How  far  it  authorizes  sale  of 

imported  articles  .  .  .  257 
States,  how  far  restricted  from 

preventing  such  sale       .         .  257 
Extends  incidentally  to   other 
and  what  objects    .        .        .  258 


INDEX. 


635 


Applied  to  protection  of  domes- 
tic industry    ....  258 
To  prohibition  of  slave-trade    .  264 
Power  of  regulating  commerce 

among  the  States  .  .  .  276 
Its  general  objects  and  extent  .  276 
How  far  restricted  .  .  .277 
What    commerce    reserved    to 

States    .         .  .         .  277 

When  power  of  Congress  may 

be  exercised  within  a  State  .  277 
Judicial    construction    of    this 

power 279 

Applied  to  incidental  objects  .  280 
Restrictions  on  States  .  .  280 
Power    of    regulating    Indian 

trade 281 

How  vested  and  interpreted      .  285 
Extent  of  its  operation     .         .  285 
Trade  and  intercourse  with  In- 
dians by  individuals,  how  re- 
strained        ....  285 
See  Indian  Tribes. 

Common  Akbiteb. 
See    Judicial    Power,    Su- 
preme Court,  &c. 

Common  Law. 
How  far  established  in  the  col- 
onies       35 

Benefit  of,  claimed  by  Congress    35 
Protects  absolute  rights     .         .     36 
Regulated  relative  rights  of  col- 
onists       37 

Punished  offences  against  pub- 
lic justice  .  .  .  .35 
How  far  adopted  by  States  .  38 
Basis  of  their  laws  .  .  .38 
State  Constitutions  made  in  ref- 
erence to  its  validity  .  .  38 
Its  existence   presupposed    by 

Constitution  of  United  States  38 
Referred  to  for  explanation  of 

its  powers  and  provisions       .     39 
How  far  Common  Law  in  force 
under    the    Constitution    of 
United  States        .        .        .42 

Congress. 

How  constituted        .         .  .50 

Disabilities  of  members    .  .     54 

Their  privileges  and  powers  .    54 


Page 

Elections,  returns,  and  qualifi- 
cations   54 

In  what  manner  these  powers 

are  exercised  .  .  .60 
Quorum  of  each  House  .  .  60 
Adjournments  and  journals  .  69 
Freedom  of  debate  .  .  .69 
Time  and  manner  of  assem- 
bling      74 

Time  and  manner  of  adjourning     74 
Period  of  dissolution         .         .     74 
See     Legislative     Power, 
House    of    Representa- 
tives, Senate,   &c. 

Constitution. 
Definition  of  one       .        .        .26 
Origin  of  them .         .        .         .26 
Where  they  may  exist       .         .     27 
When  derived  from  act  of  the 

Government .  .  .  .27 
When  from  written  compact  .  28 
Different  modes  of  framing  one  28 
Which  most  practicable  .  .  28 
Which  preferable  .  .  .28 
How  obtained  .  .  .  .28 
Theory  of  a  Republican  Consti- 
tution     29 

Advantages  of  a  written  one     .    30 
Evils  of  a  traditionary  one        .     30 
Reasons  for  preferring  one  writ- 
ten        ....        .    30 

Constitution  of  United  States. 
On  what  foundation  erected  .  31 
On  what  principles  formed  .  31 
From  what  materials  .  .  32 
In  what  manner  adopted  .  .  32 
For  what  objects  designed  .  43 
Effect  of  its   adoption  on  the 

States 43 

Effect  of  its  adoption  on   the 

former  Confederation  .  .  43 
Principle  of  representation,  how 

applied  in  it  .  .  .  .43 
Powers    of   Government,   how 

delegated  by  it  .  .  .43 
How  to  be  examined  .  .  44 
Constitutional  Law  defined     26 


Constitutions  (State). 
Foundations,  how  laid 
Source  of  their  authority  . 


31 
32 


536 


INDEX. 


Page 
33 

34 

35 

36 


On  what  principle  fonnded 

Powers    of   Government,    how 
vested  and  distributed  by  them 

Former  civil  and  municipal  in- 
stitutions, how  far  retained    . 

Natural  and   moral  rights   se- 
cured      

See     State     Governments, 
States,  &c. 

Consuls  and  Vice-Consuls. 

By  whom  appointed         .        .101 
In  what  Courts  they  may  sue 

and  be  sued  or  prosecuted    .  136 
See  Judicial  Power. 

Contracts. 
See  Laws  impairing  Contracts. 

Copyright. 

See  Science. 


356 


366 


400 
400 


Corporations. 

Grants  of,  irrevocable 

Are  Contracts  within  the  mean- 
ing and  protection  of  the  Con- 
stitution         .... 

Creation  of,  incident  to  sov- 
ereignty        .... 

Nature  and  extent  of  power    . 

*5ee  Auxiliary  Powers,  Laws 
IMPAIRING  Contracts,  &c. 

Counterfeiting. 

Power  of  punishing  .  .  .  293 
To  what  objects  it  extends  .  293 
Nature  and  necessity  of  power  294 
See  Powers  op  Government. 

Courts. 

See  Impeachments, 
Judicial  Power, 
Circuit  Courts, 
District  Courts, 
State  Courts,  and 
Magistrates,  and 
Supreme  Court. 


Page 
Debts. 

See  Tender  Laws. 

Declaration  op  Independence. 
See  Independence. 

District  Courts. 

How  organized  .         .         .168 

Stated  and  special  terms  .  .168 
Exclusive  jurisdiction  .  .168 
Original  jurisdiction  .         ,168 

Admiralty  jurisdiction  .  .168 
Concurrent    jurisdiction     with 

Circuit  Courts  .  .  .169 
Jurisdiction  exclusive  in  certain 

cases  of  State  Courts  .  .169 
With  respect  to  patents  .  .169 
Power  of  judge  at  chambers  .  175 
See  Judicial  Power. 

District  of  Columbia. 

Seat  of  Government         .  .332 

Courts  organized  therein  .  .  332 

Privileges  of  its  inhabitants  .  333 

Their  disabilities  .  .  .  333 
-See  Local  Jurisdiction. 

Dock  Yards. 
See  Local  Jurisdiction. 

Domestic  Industry. 

Encouraged  by  protecting  du- 
ties         218 

Upon  what  construction    .         .218 

By  whom  question  of  Constitu- 
tionality must  be  decided       .  222 

Commercial  restrictions  applied 
to  the  purpose        .         .         .  247 

To  what  extent,  and  upon  what 
ground  of  construction  .        .247 

How  point  must  be  decided       .  248 

See  Commerce,   Powers    of 

GrOVERNMENT,      and      TAXA- 
TION and  Taxes. 

Duties. 

See  Imposts  and  Duties, 
Taxation  and  Taxes,  &c. 


INDEX. 


537 


Page 
Electors  (of  President  and 
Vice-President). 

How  chosen       .        .        .  .86 

Number  in  each  State       .  .     86 

Kequisite  qualifications     .  .     86 

At  what  time  to  be  chosen  .     86 

Time  for  their  assembling  .  87 
Mode  of  their   proceeding   to 

election  .        .        .  .87 

Duties  subsequent  to  election  .  87 
See  President  of  U.  S. 

Executive  Power. 

General  functions  .  .  .28 
Objects  of  this  department  .  76 
Extent  of  discretionary  power  .  76 
Obligation  to  obey  and  enforce 

laws  .....  76 
Requisite  qualities  .  .  .78 
Power  apportioned  to  it  .  .  78 
Advantage  of  its  unity  .  .  80 
Evils  of  its  division  or  plurality  80 
How  vested  by  Constitution  of 

United  States  .  .  .80 
See  President  of  U.  S. 

Expatriation. 

Eight  of,  denied  by  English 
law 302 

How  regarded  bv  writers  on 
public  law     .    '    .         .         .303 

How  far  admitted  by  State  Con- 
stitutions      ....  303 

How  far  settled  in  Courts  of 
United  States        .        .        .  305 

See  Naturalization,  &c. 

Ex  POST  FACTO  Laws. 

Prohibited  to  States  .  .  .  354 
Definition  and  meaning     ,         .  355 

Felonies  (on  the  Sea). 

Power  to  define  and  punish  .  240 
To  what  they  amount  in  effect  243 
To  what  extent  declared  piracy, 

and  punished  as  such  .  .  243 
Power,  how  far  exclusive  .  243 

See  Piracy. 

Fleets. 
See  Armt  and  Navy. 


Forts. 
See  Local  Jurisdiction. 

Fugitives  from  Labor. 
Actsof  1793  and  1850      .        .270 


Government. 

Different  forms  of    . 

Powers  of,  how  divided 

How  far  distinct 

Separate  Departments 

Provincial  Governments 

How  organized 

See  Constitution  of  U.  S., 
Constitutions  (State), 
Powers  of  Government, 
State  Governments. 

Guarantees. 

Nature,  terms,  and  effect  of  the 
guarantees  to  the  States 

Their  necessity  and  extent 

Republican  form  of  Govern 
ment      .... 

Protection  from  invasion  . 

from  domestic  vio 

Icnce      .... 

When  to  be  enforced 


Habeas  Corpus. 

Benefit  of  writ  secured 
By  whom  to  be  allowed    . 


26 
29 
30 
32 
32 
33 


339 
340 


340 
341 


341 
342 


36 
153 


House  of  Representatives. 

How  constituted        .         .         .53 
On  what  principle  of  represen- 
tation      53 

Members,  how  chosen  .  .  54 
For  what  term  .  .  .  .54 
Qualifications  of  electors  .         .     54 

of  members         .     55 

How  apportioned    among    the 

States 55 

Number  of  Representatives  .  56 
Ratio  of  representation  .  .  56 
Exclusive  powers  of  House  of 

Representatives     .        .        .63 
Money  bills      .        .        .        .63 


538 


INDEX, 


"When  to  choose  President  of 

United  States        .        .        .     89 
Mode  of  conducting  election    .     89 
>S'ee   Congress,    Legislative 
Power,  &c. 

Impeachments. 

Nature  of   power,   and   where 

vested 63 

Court  of  Impeachments    .         .  64 

Impeachments,  whence  derived  64 

Senate,  why  selected  as  court  .  65 

Objects  of  the  jurisdiction         .  65 

Causes  of  impeachment    .        .  65 

Persons  liable  thereto  .  .  66 
Construction  of  Constitution  in 

relation  to  them     .         .         .66 

Quorum  of  the  Court          .         .  67 

President  of  the  Court      .        .  67 

When  Chief  Justice  presides    .  67 

Power  of  presiding  officer         .  67 
«See  Judicial  Power,  Senate, 
&c. 

Implied  Powers. 

/See  Auxiliary  Powers,  Pow- 
ers OF  Government,  &c. 

Imposts  and  Duties. 

How  far  prohibited  to  States, 

reason  and  necessity  of  it      .381 
Judicial  construction  .         .  382 

.S'ee  Powers  of  Government,  • 
Taxation  and  Taxes. 

Independence. 

Effect  of  its  declaration    .  .  32 

As  to  persons  born  previously  .  300 

As  to  citizenship .      .         .  .  300 

As  to  British  subjects        .  .  302 

Indian  Tribes. 

Intercourse  with,  regulated  .  281 
What  relations  acknowledged  .  281 
Those  residing  within  limits  of 

U.  S.,  how  considered    .         .  282 
How  distinguished  from  "  for- 
eign nations''         .         .         .  283 
Relations   with   European   dis- 
coverers, how  determined      .  284 
How  fiir  same  principle  adopted 
by  United  States  .         .         .  284 


Page 
Practical  results  .  .  .  285 
How  considered  in  treaties  and 

laws 285 

Their  territory,  how  regarded  .  285 
See     Commerce,     Judicial 

Power,  &c. 

Internal  Improvements. 

Right  of  appropriating  money 

for,  claimed  under  what  power  287 
How  far  admitted     .         .         .421 
See  Commerce,  Post-offices, 
AND  Post-roads,  &c. 

Interpretation  of  Constitu- 
tion. 

Right  of  interpreting  Constitu- 
tion, where  vested         .        .127 
Final  interpreter  provided         .  422 
^See  Judicial  Power, 

Supreme  Court, 

Supreme  Law. 

Judicial  Power. 

General  functions  and  objects  .    28 
Nature  of  the  power         .        .111 
Effect  of  its  omission        .         .112 
How  far  auxiliary  to  Executive  112 
How  far  it  partakes  of  Legisla- 
tive power     .        .        .        .112 

Objects  of  this  department       .  112 
Coextensive    with    Legislative 
power    .        .        .  .      .        .112 

How  recognized  in  Constitution  112 
How  vested       .        .        .        .113 

In  what  manner  constituted      .  113 
Appointment  of  judges     .        .  113 
Tenure  of  their  offices      .         .114 
Advantages  of  such  tenure         .  114 
Provision  for  their  support        .  116 
Necessity  of  their  independence  117 
Responsible  for  misconduct       .118 
Objects  of  jurisdiction       .         .119 
Necessity  and  advantages  of  it  121 
As  to  cases  arising  under  Con- 
stitution .         .         .         .123 

As  to  cases  arising  under  the 

laws  of  the  United  States     .  124 
As  to  treaties    .         .         .         .125 

As  to  interpreting  Constitution    125 
Objects  of   separating  judicial 
from  other  departments         .  130 


INDEX. 


539 


Power  over  Constitutions  and 

laws  of  the  States  .  .  .130 
Power  of  final  interpretation  .  130 
Distribution  of  jurisdiction  .  132 
Supreme  Court  .         .         .  135 

Appellate  jurisdiction        .         .  135 
In  what  cases  extended  to  de- 
cisions of  State  Courts  .  144 
Power  of  United  States  Courts 

to  issue  process,  &c.  .  .145 
Of  judges  to  relieve  by  Habeas 

Corpus  .  .  .  .  .153 
Circuit  Courts  .  .  .  .162 
Judicial  Districts  .  .  .  162 
District  Courts  .         .         .168 

Territorial  Courts     .         .         .175 
State  Courts  and  magistrates    .  179 
See  Courts,  Powers  of  Gov- 
ernment, &c. 

Jurisdiction. 

See  Courts,  Local  Jurisdic- 
tion, Judicial  Power,  &c. 

Law. 

See  Common  Law,   Supreme 
Law,  &c. 

Law  of  Nations. 

Power  to  punish  offences  against  240 
How  far  exclusive  .  .  .  243 
Part  of  Common  Law  of  States  243 
Offences  against,  what  .  .245 
How  punishable  .  .  .  245 
Policy  of  the  law  .  .  .245 
5ee  Judicial  Power. 

Laws   impairing  Contracts. 

Prohibited  to  the  States  .  .355 
Policy  of  the  restriction  .  .356 
To  what  contracts  it  extends  .  357 
Obligation  of  contracts  .  .  357 
Judicial  construction  of  .  .358 
See  Powers  of  Government. 

Legislative  Power. 

General  functions  .  .  .28 
How  organized  in  colonies        .     31 

. in  the  States     .     32 

How  vested  by  Constitution  of 
United  States        .        .        .50 


Page 
Constituent  parts  .  .  .50 
Objects  of  its  division  .  .  50 
Evils  of  a  single  legislative  body  51 
Examples  of  .  .  .  .51 
Eurther  reason  for  division  in 
Government    of   the  United 

States 52 

Upon  what  principle  effected    .     53 
Objects  to  which  the  legislative 
power  of  the  United  States 
extends  .         .         .         .53 

See  Congress,  House  of  Eep- 

RESENTATIVES,  SeNATE,  &C. 

Letters  of  Marque. 
See  Marque  and  Reprisal. 

Loans. 
See  Borrowing  Money. 

Local  Jurisdiction. 

Power  of  exclusive  legislation  330 
To  what  places  it  extends  .  331 

Necessity  of  such  power  .  .331 
In  what  mode  executed  .  .  331 
See  District  of  Columbia,  &c. 

Manufactures. 
See  Domestic  Industry. 

Marque  and  Reprisal. 

Signification  of         .         .  .193 

By  what  authority  granted  .  193 

Effect  of  the  grant    .         .  .193 

In  what  cases  granted  .  .193 
Nature  and  necessity  of  power    194 

Prohibited  to  States           .  .  348 

Upon  what  grounds          .  .  348 

Militia. 

Power  of  regulating  and  calling 

forth 201 

Objects  of  the  power         .        .  202 
Extent,  and  cases  for  its  exer- 
cise          202 

Effect  of  its  exercise  on  militia  206 
Mode  of  their  organization,  &c.  207 
By  whom  "  called  forth  "  .  208 

Who  to  judge  of  exigencies  .  209 
Obligation  of  the  States  .  .  207 
Duty  of  State  ofiicers        .        .  207 


540 


INDEX. 


Page 
When    concurrent    power    of 

States  over  militia  ceases       .  208 
When  militia  become  National  208 

Ministers  (Public). 
See  Ambassadors. 


Money. 


292 
292 
293 
293 


Power  of  coining 

Regulating  value  of  coins 

How  rendered  exclusive   . 

Its  necessity  and  advantage 

Objects  of  rendering  power  ex- 
clusive    293 

Why  prohibited  to  the  States   .  348 

(See  Borrowing  Money,  Coins 
AND  Coining,  &c. 

Naturalization. 

Power  to  establish  uniform  sys- 
tem         296 

Necessarily  exclusive  .  .  296 
Who  may  be  naturalized  .  .  302 
Mode  of  proceeding  .         .  304 

Effect  of  naturalization  .  .  304 
See  Alien  Citizens,  &c. 

Natural  Rights. 

In  what  they  consist         .        .  35 

Privileges  subordinate  thereto  .  35 

How  secured  in  colonies  .         .  36 

in  the  States       .  36 

Additional  securities         .        .  37 
How  recognized    and    secured 
by    Constitution    of   United 

States 42 

Navigation. 
See  Commerce. 

Navy. 
See  Army  and  Navy. 

Nobility. 
See  Titles  of  Nobility. 

Oath  to  support  Constitution. 


By  whom  to  be  taken 
Intention  and  effect  . 


401 
401 


States  cannot  discharge  from    .  403 
See  Powers  op  Government, 
States,  &c. 

Obligation  of  Contracts. 
See  Laws  impairing  Contracts. 

Passports. 

See  Law  of  Nations,  Powers 
OF  Government,  &c. 

Patents. 

See  Science. 

Piracy. 

Power  to  define  and  punish  .  240 
Exclusive  in  its  nature  .  .  240 
Definition  of  piracy  .  .  .  240 
Mode  of  defining  it  .  .  .  240 
Who  are  deemed  pirates  by  law 

of  nations  ....  241 
Jurisdiction  exercised  over  them  241 
How  punished  ....  241 
Where  they  may  be  tried  .  242 
Acts  declared  piracy  by  Con- 
gress       242 

Jurisdiction  in  such  cases  .  243 

Particular  acts  declared  piracy  243 
How  punished  ....  243 

Post-offices  and  Post-roads. 

Power  to  establish  them  .  .  286 
How  far  exclusive  .  .  .  286 
What  power  claimed  as  incident  287 
How  far  admitted  .  .  .  287 
See  Internal  Improvements. 

Powers  of  Government. 

How  distinguished  .        .29 

How  to  be  organized  .  .  30 
Consequences  of  uniting  them .  30 
How  distributed  in  the  colonies  31 
How  organized  in  the  States  .  32 
How  vested  by  Constitution  of 

United  States  .  .  .34 
Extent  of  their  separation  .  37 
Object  of  their  partial  union  .  37 
End  thus  effected  in  Govern- 
ment of  United  States  .  .  42 
Legislative  power  .  .  .47 
Executive  power       .        .        .76 


INDEX. 


541 


Page 

Judicial  power .        .        .        .Ill 
Nature  of  powers  vested  in  Gov- 
ernment of  United  States      .  191 
Reduced  to  different  classes      .  191 
Powers  relative  to  security  from 

foreign  danger        .        .         .  191 
Relative  to  war         .         .         .192 

— '—  taxation  .        .210 

'■ —  borrowing  money  .  225 

foreign  intercourse  227 

treaties   .         .         .227 

ambassadors,  &c.    .  227 

piracy     .         .         .  240 

felonies  at  sea         .  243 

offences  against  law 

of  nations       ....  245 

foreign  commerce  .  245 

slave-trade      .         .  264 

intercourse  between 

the  States       ....  275 

commerce     among 

the  States      .        .        .        .276 

with  the  Indians     .  281 

•  postoffices  and  post- 
roads      286 

coining  money,  &c.  292 

weights  and  meas- 
ures          292 

■ •  punishment  of  coun- 
terfeiting       .         .         .         .293 

State  records  .         .  294 

naturalization  .  296 

bankruptcy     .         .  306 

miscellaneous     ob- 
jects        314 

science  and  useful 

arts 314 

■ local  jurisdiction    .  329 

punishment  of  trea- 
son        .....  333 

admission    of  new 

States 336 

■  territory  and  prop- 
erty       .....  338 

guarantees    to    the 

States 339 

amendment  of  Con- 
stitution ....  342 
Implied  and  reserved  powers     .  346 
Restrictions  on  the  States  .  347 

• absolute  against      .  347 

treaties,  &c.    .         .  347 

letters    of   marque 

and  reprisal  ....  348 

46 


Page 
Restrictions  on  coining  money  .  348 

bills  of  credit .         .  349 

tender  laws     .         .351 

bills  of  attainder     .  353 

Ex  post  facto  laws  .  353 

laws  impairing  con- 
tracts       353 

Qualified  restrictions          .         .  381 
upon  duties  on  im- 
ports, &c 381 

relative    to    troops 

and  ships  of  war  .         .         .  381 
compact  and  agree- 
ments     381 

engaging  in  war     .  385 

Auxiliary  powers       .         .         .  389 


laws  "  necessary  and 


proper"  for  executing  powers  389 
oath  to  support  Con- 


stitution of  United  States      .  401 
declaration      of     su- 
preme law      ....  405 
right  of  final  interpre- 
tation       414 

its  ratification  by  the 

people     .....  416 

President  of  United  States. 

Qualifications  for  election  .     80 

Mode  of  election  .  ,  .86 
For  what  term  elected  .  .  90 
Provision  for  his  support .  .  106 
When  to  be  declared  elected  by 

electors 87 

How  appointed  when  no  choice 

by  electors     .        .        .        .87 
Commander-in-chief  .        .     98 

Reprieves  and  pardons  .  .  98 
Power  as  to  treaties  .  .  .99 
Nominates  to  what  oflBces  .  101 
Power  of  filling  vacancies         .  103 

as  to  removal  from  oflSce  103 

as  to  convening  and  ad- 
journing Congress          .         .  103 
Dutv  with  respect  to  ambassa- 
dors, &c 103 

General  duties  ....  103 
Powers  and  duties  .  .  .  103 
Negative  upon  laws,  &c.  .  .103 
Evidence  of  his  refusal  to  ac- 
cept, or  of  his  resignation  .  108 
How  vacancies  in  office  sup- 
plied       108 


542 


INDEX. 


Liability  to  impeachment . 
See  Executive  Power. 


Ratification  of  Constitution. 

Provision  for  ratifying  Consti- 
tution     416 

Its  nature  and  effects  .  .416 
Mode  of  ratification  adopted  ,418 
How  ratified  by  people  .  .419 
Assent  of  States,  how  implied  .  419 
Consequences  of  such  ratifica- 
tion       420 

See  Secession. 

Repbesentation. 

On  what  principle  founded  in 

government  .  .  .  .29 
How  to  be  applied  .  .  .29 
In  reference  to  powers  of  gov- 
ernment .  .  .  .29 
As  to  parties  delegating  them  .  30 
Practical  exception  .  .  .30 
How  far  principle  prevailed  in 

colonial  governments    .         .    31 
How  extended  in  State  Consti^ 

tions       .         .         .         .         .32 
How  applied  in  Constitution  of 
United  States        .        .        .42 

RbPRESENTAT I VES . 

See  House   of  Representa- 


Restrictions  on  States. 

See  Powers  of  Government, 
States,  &c. 

Revenue. 

See  Taxation,  &c. 

RWHTS. 

See  Natural  Rights. 

Safe  Conducts. 

See  Law  of  Nations.  Powers 
of  Government,  &c. 

Senate. 

How  constituted        .        .        .60 
On  what  principle  of  represen- 
tation     60 


Page  Page 

109  Number  of  Senators  .  .  60 
In  what  manner  they  vote  .  60 
By  whom  chosen  .  .  .60 
Manner  of  their  election  .  .61 
For  what  term  elected  .  .  60 
Qualifications  of  Senators  .  62 
Powers  exclusive  of  House  of 

Representatives  .  .  .64 
Why  consent  of  Senate  required 

to  treaties  .  .  .  .67 
Why  associated  with  President 

in  appointing  power  .  .  67 
When  to  choose  Vice-President 

of  United  States  .  •  .69 
See   Congress,  Legislative 

Power,  &c. 

Science. 

Power  to  promote  its  progress  .  314 
Foundation,  origin,  and  policy  314 
Mode  in  which  executed  .  .317 
Objects  of  the  power  .  .317 
By  what  construction  effected  .318 
Former  State  laws  .  .  .319 
Nature    and   extent  of  power 

vested  in  Congress  .  .  322 
Distinction  between  property  of 

authors  and  that  of  inventors  326 
Privileges  secured  to  both  .  327 
Extent  and  limitation  of  State 

power  in  regard  to  them  .  327 
See  Powers  of  Government. 

Secession. 

Whether    States    may    secede 

from  the  Union      .        .        .418 
Consequences  of  secession        .  423 
See  Powers  of  Government, 
States,  &c. 

Slave-Trade. 

Power  of  prohibiting  .  .  264 
How  executed  by  Congress  .265 
See  Powers  of  Government. 

State  Courts  and  Magistrates. 
See  Judicial  Power. 

State  Governments. 

Power  over  militia  .  .  .  208 
Jurisdiction  of  offences  against 


laws  of  nations 


242 


INDEX. 


543 


Page 
Powers  reserved  to  them  .  .255 
Subordinate  to  Union  .  .  256 
Restricted  as  to  imposts,  &c.     .  258 

■ commerce         .  258 

Concurrent  power  of  legislation 

in  certain  cases  with  Congress  258 
Restrictions   as  to    preventing 

sale  of  imported  articles        .  258 
Restrictions    as    to    protecting 

duties 258 

Regulation    of    internal    com- 
merce     275 

Effect   of  their   collision    with 

powers  of  Union  .        .        .277 
Power  in  cases  of  bankruptcy 
and  insolvency       .        .        .  306 

to  promote  science,  &c.  314 

of  punishing  treason      .  333 

Guarantee  of  Republican  Gov- 
ernment        ....  339 
Power  as  to  amendment  of  Con- 
stitution of  United  States      .  342 
Restrictions  on  their  powers      .  347 
Restricted  as  to  war  .         .381 

Cannot    discharge    individuals 
from  their  allegiance  to  the 
United  States         .         .         .403 
Assent  of  State  Governments  to 

Constitution  of  United  States  405 
States  cannot  annul  or  abrogate 

the  Federal  powers        .        .411 
See  Constitutions   (State), 
Powers   of  Government, 
States,  &c. 

State  Records. 

Power  of  Congress  in  relation 

to  them          .         .         .         .294 
Their  effect  in  other  States        .  295 
Effect  of  judgments  of    State 
Courts  as  evidence  in  other 
States 295 

States. 
Powers  reserved  to  them  .         .  255 
Their  jurisdiction,  how  far  su- 
perseded in  maritime  cases    .  274 
Preservation  of  harmony  among  275 
Commerce  among  them  regu- 
lated       277 

Internal  concerns,  how  far  af- 
fected   by    Constitution    of 
United  States        .        .        .279 
Internal  commerce  of       .        .  280 


Page 

Proof  and  effect  of  their  records  294 
Their  powers,  how  affected  by 
collision  with  those  of  Con- 
gress        294 

Citizens  of  the  several  States  .  297 
Treason  against  a  State  .  .  333 
Admission  of  new  States  .  336 
Guarantees  to  the  States  .  .  339 
Reserved  rights  .        .         .  345 

Restrictions  on  their  power      ^  347 
Bound  by  whose  construction 
of  the  Constitution  of  United 

States 410 

No  discretion  as  to  organizing 
Government  of   the    United 

States 415 

Cannot  secede  from  Union         .417 
See  Constitutions   (State), 
Powers   of   Government, 
State  Governments. 

Supreme  Court. 

Judges  recognized  in  Constitu- 
tion, &c.         .        .        .        .113 
Tenure  of  their  offices       .         .114 
Court  created  bj  Constitution  135 
"     "  .135 

.  135 
.  135 
.  135 
.  135 
.  136 
.  138 


■  organized  by  law 
Number  of  judges 
Number  to  form  quotum 
Terms  of  the  Court 
Jurisdiction,  original 

appellate 

exclusive 

In  cases  against  ambassadors, 

&c 136 

where  a  State  is  a  party  139 

In  suits  by  a  State  .  .  .  139 
Concurrent  jurisdiction  .  .  139 
In  suits  by  ambassadors  .  .143 
Where  a  State  is  a  party  .  .  143 
Whether  original  jurisdiction  is 

in  all  cases  exclusive  .  .  143 
Jurisdiction  as  to  Indians  .  141 

Mode  of  exercising    appellate 

jurisdiction  ....  142 
Writs  of  error  and  appeals  .  144 
In  what  cases  allowed  .  .144 
From  judgments  of  what  Courts  148 
Restrictions  on  the  right  .  .  148 
Proceedings  in  case  of  reversal  148 
Regulations  respecting  writs  of 

errors  and  appeals  .  .151 
Judicial  construction  in  regard 

to  them  ....  152 


544 


INDEX. 


Page 
Exceptions  from  appellate  juris- 
diction   149 

Appeals  from  State  Courts       .  150 
Superintending  power  over  in- 
ferior courts  .         .         .         .152 
See  Judicial  Power. 

Sdpreme  Law. 

Declared  by  Constitution  .  405 

Effect  of  conflict  between  Fed- 
eral and  State  powers    .         .  406 
Duty  of  Courts  in  such  cases    .  410 
States  bound  by  interpretation 
of  Constitution   by  Supreme 
Court  of  the  United  States  .  410 


Taxation  axd  Taxes. 

Power  of  levying  taxes  .  .210 
Its  objects  and  purposes  .  .211 
Its  necessity  and  extent  .  .211 
Where    vested,    and    in    what 

terms 211 

How  qualified  in  its  exercise  .  212 
Subjects  of  taxation  .         .212 

In  what  sense  term  "  Taxes" 

used  .....  213 
Different  kind  of  taxes  .  .213 
Importance    of    distinguishing 

them 213 

Judicial  construction  of  power  215 
Restrictions  on  States  respect- 
ing it     381 

Judicial  construction  thereof     .  382 
(See Legislative  Power,  Pow- 
ers OF  Government,  &c. 

Tender  Laws. 

How  far  prohibited  to  States  .  347 
What  allowed  as  legal  tender  in 

payment  of  debts  .  .  .  347 
See  Pow£RS  of  Government. 


Territorial  Courts. 

Where  established     . 
Tenure  of  judges 


175 
176 


Courts  there,  how  organized     .  176 
-Jurisdiction  vested  in  the  sev- 
eral Courts    .         .         .         .177 

Special  jurisdiction   of  certain 
Territorial  Courts         .        .177 


Territorial    Regulations. 

Power  of  disposing  of  and  reg- 
ulating   territory  and    other 
property  of  the  Union  .         .  338 
Condition  annexed  to  it   .        .  338 
Construction  of  power      .         .  338 
See  Powers  of  Government. 


Titles   of  Nobility. 

Power  of  granting,  prohibited 
to  the  States  .        .        .  347 

Tkeason. 

Power  to  declare  its  punish- 
ment       333 

Treason  against  United  States 

defined 334 

Evidence  requisite  to  convict  .  335 
Judicial  constructions  .  .  335 
Treason  against  a  State  .  .  335 
Effect  of  a  confession  .  .  335 
Punishment  of  treason  against 
United  States        .        .        .  336 

Treaties. 

Nature  of  power  to  make  .        .  227 
To  what  extent  declared    su- 
preme law     ....  230 
How  and  where  the  power  is 

vested 230 

How  treaties  are  to  be  con- 
strued     235 

How  defined  by  law  of  nations  235 
How   regarded    by   Courts  of 

United  States  .  .  .235 
Their  effect  and  operation  .  235 
Power  of  Congress  over  them  238 
Obligation  of  treaties  .  .  235 
Extent  of  the  power  .  .  235 
Interpretation  of  treaties  .  236 

Consequences  of  their  violation  237 
Effect  of  partial  violations  .  237 
How  such  effect  prevented  .  237 
Power  of  annulling  treaties  .  230 
Effect  of  its  exercise  .  .  230 
States   restricted  in  regard  to 

them 347 

See  Powers  of  Government, 
President  of  U.  S..  Sen- 
ate, &c. 


INDEX. 


545 


Page 
Vice-Peesident  of  TJ.  S. 

His  powers  in  cases  of  impeach- 
ment       67 

How  chosen,  and  qualifications  89 
For  what  term  elected  .  .  90 
How  appointed  in  case  of  no 

choice  by  electors  .  .  .87 
His  duties  as  President  of  Senate  87 
When   to   act  as  President  of 

United  States        .        .        .90 
Evidence  of  his  refusal  to  ac- 
cept        108 

How  long  he  continues  to  act 
as  President  of  United  States  109 

War. 

Whence  right  of  declaring  it 
derived 191 


Causes  of  war  . 

. 

192 

Forms  of  declaring  it 

. 

192 

Power  of  declaring  it, 

where 

vested   . 

192 

In  what  mode  declared 

193 

Effect  of  declaration 

193 

"  Levying  war  "  —  what 

334 

Weights  akd  Measckes. 

Power  to  fix  standards      .        .  292 
How  far  exclusive     .        .        .  292 

Writs  of  Error. 
See  Supreme  Court. 


Page     Line 

ii,        13, 

viii,        81, 

xii,  note  2, 

xiv,        13, 

41,        12, 

80,        15, 

96,  5, 

171,  note, 

182,  9, 

219,        31, 

247,  note, 

267,         4, 

279,        — , 

297,  5, 

808,  2, 

375,        29, 

880,  note  24, 

389,  note 


ERRATA 


for  "judicial,"  read  juridical. 

for  "  amorphy,"  read  atrophy. 

for  "  this,"  read  the. 

between  "  the  "  and  "  work,"  insert  original. 

for  "  authorize,"  read  authorizes. 

for  "  costs,"  read  evils. 

for  "  departments,"  read  department. 

for  "  Act,"  read  Art. 

for  "  it,"  read  they. 

dele  "  awkward." 

for  "  19,"  read  10. 

for  "  repeated,"  read  repealed. 

dele  1st  note. 

between  "  to  "  and  "  another,"  insert  those  of. 

before  "or,"  insert  N. 

between  "  that "  and  "  the,"  insert  if. 

I  dele  "not." 

dele  "  to  xviii,"  and  insert  18. 


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